## Facts

- Shaw Family Archives Ltd. (SFA) owned copyrights in many photographs of Marilyn Monroe and, through Bradford Licensing Associates (Bradford), licensed those images for commercial products.
- Marilyn Monroe, LLC (MMLLC) and its licensing agent CMG Worldwide, Inc. (CMG) asserted that Monroe’s estate had assigned them Monroe’s postmortem right of publicity (name, likeness, persona).
- MMLLC/CMG sued under Indiana’s Right of Publicity Act, which recognizes an assignable postmortem right lasting 100 years.
- The dispute turned on whether Monroe had a transferable, postmortem publicity right when she died in 1962 and whether later statutes could supply such a right retroactively.
- Monroe’s estate had historically represented in probate and tax filings that Monroe was domiciled in New York, but later argued for California domicile when postmortem publicity rights became commercially valuable.

## Issues

1. Whether Monroe possessed a descendible postmortem right of publicity at her death in 1962 that could pass by will or assignment and be enforced under Indiana’s Right of Publicity Act.
2. Whether MMLLC/CMG were barred from asserting a domicile inconsistent with the estate’s prior representations for purposes of choosing the governing law.
3. Whether later-enacted publicity statutes (Indiana or California) could retroactively create and vest a property right in Monroe’s persona that did not exist at her death.

## Decision

- The court granted SFA/Bradford’s cross-motion for summary judgment and dismissed with prejudice the Indiana right-of-publicity claim (Count II).
- The court denied MMLLC/CMG’s motion for summary judgment on the same claim.
- The court treated Monroe as domiciled in New York at death based on judicial estoppel, and held New York law in 1962 recognized no postmortem publicity right.
- The court further held that even if California law applied, California did not recognize a descendible postmortem publicity right in 1962.
- The court held Indiana’s statute could not be used to retroactively create a postmortem right that Monroe did not own at death and therefore could not have devised.

## Legal Principles

- A will can transfer only property owned by the testator at death; a decedent cannot devise a right that did not exist at death.
- Judicial estoppel may bar a party from taking a litigation position inconsistent with earlier representations accepted by courts or authorities, particularly where the party obtained benefits from the earlier position.
- Under New York law as of 1962, the right of privacy/publicity was statutory, personal, and not descendible.
- Later-enacted statutes creating postmortem publicity rights cannot be applied to manufacture a property right in a long-deceased person and deem it transferred by an earlier will absent a right existing at death.
- A statutory right-of-publicity claim fails where the plaintiff lacks a valid chain of title to any descendible publicity right.

## Conclusion

The court held that Monroe had no transferable postmortem right of publicity at her death, that her estate’s successors could not reverse prior domicile representations to obtain favorable law, and that Indiana’s statute could not retroactively vest a publicity right in Monroe’s estate; accordingly, the asserted Indiana right-of-publicity claim was dismissed.


Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 (S.D.N.Y. 2007)