Marilyn Monroe’s Will and the Right of Publicity: Residency Matters

After her divorce from Yankee slugger Joe DiMaggio on 27 October 1954, Marilyn Monroe decided to form Marilyn Monroe Productions on 31 December 1954 before leaving California to begin a new life in New York City.  She would reside in New York until shortly before her death in 1962.  In early 1955, Monroe studied privately with Lee Strasberg before joining the famed Actors Studio and taking classes there.  Determined to become a serious actress, Monroe also hired Strasberg’s then wife Paula as her new acting coach.  At Strasberg’s urging, she also began psychoanalysis with Dr. Marianne Kris as a way of helping her to bring out more of herself in the development of character roles.

After her marriage to playwright Arthur Miller in 1956, the newlyweds made their home in Manhattan’s Sutton Place overlooking the East River beginning in August of 1957.  Marilyn Monroe was still a resident of this apartment (and thus of New York) when she died in her Brentwood, CA home on 5 August 1962.

On 14 January 1961, Marilyn Monroe executed her Last Will and Testament in New York.  The Will was drafted by “lawyer to the stars” Aaron R. Frosch, who was also Richard Burton and Elizabeth Taylor’s attorney.   The Will named Frosch as the executor of the Will and as the trustee of the trust that Monroe established to care for her mother Gladys Baker.

After Monroe’s death in California in 1962, Frosch filed the Will for probate in New York County Surrogate Court.  According to a Time Magazine article, “for all her troubled personal life, her business affairs seemed in extraordinarily good order. Unencumbered by the debts, tax claims and pending lawsuits so common to Hollywood’s money minters, the value of her estate was listed “in excess of $500,000,” a legalism often meaning much more. She left $100,000 in trust for her mentally ill mother, $50,000 to her onetime secretary, May Reis, $93,750 to her Manhattan psychiatrist, Marianne Kris, the rest to her sister and friends, chief among them Method Director-Teacher Lee Strasberg, 60, who reportedly will get a munificent $240,000 and all her personal belongings.”

Strasberg received the bulk of Monroe’s estate as a result of the following stipulation in the Will:

SIXTH: All the rest, residue and remainder of my estate, both real and personal, of whatsoever nature and wheresoever situate, of which I shall die seized or possessed or to which I shall be in any way entitled, or over which I shall possess any power of appointment by Will at the time of my death, including any lapsed legacies, I give, devise and bequeath as follows:

(a) to MAY REIS the sum of $40,000.00 or 25% of the total remainder of my estate, whichever shall be the lesser,

(b) To DR. MARIANNE KRIS 25% of the balance thereof, to be used by her as set forth in ARTICLE FIFTH (d) of this my Last Will and Testament.

(c) To LEE STRASBERG the entire remaining balance.

Monroe’s psychiatrist Dr.  Marianne Kris founded the Anna Freud Centre in London, which inherited her share of Monroe’s estate after Kris’s death.  When Lee Strasberg died in 1982, his inheritance from Monroe passed to his last wife Anna who then created Marilyn Monroe LLC, which now owns her estate share of the publicity rights to Marilyn Monroe.  In 1996, Anna Strasberg hired Indiana-based CMG Worldwide to manage Monroe’s publicity rights.  When Aaron Frosch died in 1989, Anna Strasberg was appointed as the administrator of Monroe’s estate by the New York County Surrogate’s Court.  In 2001 Anna Strasberg was given permission by the Surrogate’s Court to close out the estate and to transfer the remaining assets to Marilyn Monroe LLC (MMLLC).

Monroe’s Will did not mention a right of publicity.  A right of publicity is a creature of state statute.  There is no federal law that governs the right of publicity.  Indiana has the most far-reaching statute concerning the right of publicity, an important fact in Monroe’s case because CMG Worldwide is based in Indiana.   Passed in 1994, Indiana’s Code 32-36-1 recognizes the right of publicity for 100 years after the death of the celebrity in question.  Its application is far-reaching, covering everything from “name, image and likeness” to “voice; signature; photograph; image; likeness; distinctive appearance; gestures; or mannerisms.”

New York, on the other hand, has a much more limited right of publicity.  In New York, the right of publicity is governed by  N.Y. Civ. Rights Law §§ 50, 51.   The right of publicity does not survive the decedent in New York.

In 2007 the Shaw Family Archives (SFA), a family-owner company established by the children of Sam Shaw, filed suit against CMG in the Southern District of New York (Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309, 312 (S.D.N.Y. 2007)).  At issue was whether Marilyn Monroe LLC held the actress’s post-mortem right of publicity.  At stake was over $7 million annually on the sale of Monroe merchandise, and CMG claimed exclusive rights over Monroe’s postmortem right of publicity.

Sam Shaw was a photographer and friend of Monroe’s who took many photographs of her, including the iconic photo of Marilyn standing over the subway grate with her skirt billowing, a photo that was used as a publicity shot for the film The Seven-Year Itch.   SFA asserted in its complaint that the Shaw children were the holders of the copyright to these photographs (486 F. Supp. 2d at 312-13).  SFA argued that “even if a postmortem right of publicity in Marilyn Monroe’s name, likeness and persona exists, MMLLC and CMG cannot demonstrate that they are owners of the right because only property actually owned by the testator at the time of her death can be devised by will” (Shaw, 486 F. Supp. 2d at 313-14).

Relying on the Indiana statute, Marilyn Monroe LLC (MMLLC) responded by saying that it was the holder of Monroe’s postmortem right of publicity.   MMLLC even counter sued SFA, claiming that SFA had violated Indiana’s Right of Publicity Act because SFA had permitted the sale of a T-shirt bearing a photo of Monroe to be sold in a Target department store in Indiana.

The court granted SFA a summary judgment, meaning that the court found no genuine issue as to any material fact and that SFA was entitled to a judgment as a matter of law.  The court said that because Marilyn Monroe was not a domiciliary of Indiana at the time of her death, she could not transfer her right of publicity through her Will.   She was either a domiciliary of California or New York, and at the time of the trial neither state recognized a postmortem right of publicity.

The case was decided on May 4, 2007.  In October of 2007, California Governor Arnold Schwarzenegger signed into law Senate Bill 771 that created a postmortem right of publicity for non-family members named in the residuary clause in a Will, so long as the decedent was a resident of California at the time of death.   The law was made retroactive, thus impacting Monroe’s estate.  The Screen Actors Guild and Anna Strasberg had lobbied heavily for the passage of the law.

But the passage of the law did not fully resolve the case of Marilyn Monroe.  Was Monroe a resident of New York or of California at the time of her death?  In a choice of law case decided in May 2008, the District Court for the Central District of California held that since the executors of Monroe’s estate had chosen New York as her place of residence at the time of her death and had probated her Will in New York, Monroe was a resident of New York at the time of her death.  And because New York does not allow postmortem rights of publicity, Monroe’s estate could not claim those rights under California law.

The irony was that, in choosing New York over California, the executors unknowingly deprived the residuary beneficiaries (Marilyn Monroe LLC) from gaining exclusive control of her postmortem right of publicity.  They had chosen to probate the estate in New York because California inheritance taxes were higher than New York’s.

What are the lessons to be learned from Marilyn Monroe’s Will?  First, it is a cautionary tale about the importance of the language for the residuary estate in the drafting of a Will.   Secondly, where a person has more than one residence, it is wise to look at how the laws of each state will impact and be implicated in the person’s Will.  And thirdly, each person’s estate is unique, and no boilerplate form can take the place of a carefully crafted Will in the hands of a competent attorney.  Your unique estate deserves the attention it will be given by your attorney.

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