Shaw Family Archives v. CMG Worldwide

Procedural Posture

  • Defendants moved for summary judgment on the right of publicity claims set forth in Count II of its complaint, and plaintiffs filed a cross-motion for summary judgment on Count II against defendants.

Overview

  • Plaintiffs argued, inter alia, that even if a postmortem right of publicity in a public figure’s name, likeness, and persona existed, defendants could not demonstrate that they were the owners of that right because only property actually owned by a testator at the time of her death could be devised by will.
  • Since neither New York nor California (the only possible domiciles of the public figure at the time of her death)–nor Indiana–recognized descendible postmortem publicity rights at the time of the public’s death, she could not transfer any such rights through her will.
  • Moreover, plaintiffs contended, neither the California nor the Indiana right of publicity statutes allowed for the transfer of the publicity rights they recognize through the wills of personalities who were already deceased at the time of their enactment.
  • Regardless of the public figure’s domicile at the time of her death, and regardless of any rights purportedly conferred after her death by the Indiana Right of Publicity Act, Ind. Code §§ 32-36-1-1 to -20, or by Cal. Civil Code § 3344.1, the public figure could not devise by will a property right she did not own at the time of her death.

Issue

  • Whether MMLLC is the successor-in-interest to the postmortem right of publicity that was devised through the residuary clause of Ms. Monroe’s will
  • Whether the commercial use of Ms. Monroe’s picture, image, and likeness by SFA and Brad ford without MMLLC’s consent violates its rights under Indiana’s 1994 Right of Publicity Act, which creates a descendible and freely transferrable right of publicity that survives for 100 years after a personality’s death and applies to an act or event that occurs within Indiana, regardless of personality’s domicile, residence, or citizenship

Holdings/Reasoning

  • Ms. Monroe could not devise by will a property right she did not own at the time of her death on 1962.
  • Postmortem publicity rights not recognized in NY, CA or IN in 1962.
  • NY does not recognize these rights still (to date of opinion)
  • At the time of her death in 1962 Ms. Monroe did not have any postmortem right of publicity under the law of any relevant state. As a result, any publicity rights she enjoyed during her lifetime were extinguished at her death by operation of law.
  • Ms. Monroe did not have the testamentary capacity to devise property rights she did not own at the time of her death.
  • Ms. Monroe did not “intend” to devise any rights she may have acquired under the Indiana or California right of publicity statute through the residuary clause of her will.
  • Neither the California nor the Indiana postmortem right of publicity statutes allows for testamentary disposition of the rights it recognizes by celebrities already deceased at the time of its enactment.

Outcome

  • Motion for summary judgment denied

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