Delebs — dead celebrities — are a thriving business.  Authentic Brands Group purchased licensing rights to Marilyn Monroe’s image in 2010 for a rumored $30 million.  CKX Inc. paid $100 million in 2008 for 85 percent of the Elvis Presley estate.  CMG Worldwide is a multinational intellectual property rights company whose, um, late star-clients include: Natalie Wood; James Dean; Gen. George S. Patton; Neil Armstrong; Humphrey Bogart; Marlon Brando; Bette Davis; Diana, Princess of Wales; Babe Ruth; and many others.  Forbes magazine has an annual list of top earning delebs, read the latest here.  Legal recognition of the publicity rights of a dead personality, however, is an evolving area and it makes a significant difference to heirs, entrepreneurs and business people exactly which laws control the estates of the deceased, as recent events involving Norma Jeane Mortenson illustrate. Who?

After Mortenson, aka Marilyn Monroe, died in Brentwood in 1962, she was interred at Westwood Village Memorial Park Cemetery in Los Angeles and her will underwent probate in Los Angeles. Her estate considered claims of domicile in California, Indiana and New York; none of those states at the time had descend-able postmortem publicity rights.  The executor of her estate and her housekeeper gave sworn statements that her primary residence was New York at the time of her death, so her estate could avoid the Golden State’s bigger estate tax.

In 1999, Christie’s auctioned some of Monroe’s personal effects and netted more than $13 million.  The estate began to question Monroe’s rights of publicity.  As Indiana had recognized a postmortem right of publicity in 1994, Monroe’s estate filed suit against the estate of the famous photographer who had taken many iconic images of Monroe, the Shaw Family Archives, alleging violation of her right of publicity for using her name, likeness and image for commercial purpose without consent. The Shaws filed for declaratory relief in New York federal court and ultimately the estate’s suit was transfereed to New York and consolidated with the Shaw case.

In 2007, New York Judge Colleen McMahon ruled that Monroe’s rights of publicity ended with her death, read it here.  Around the same time, Calif. Gov. Arnold Schwarzenegger signed Senate Bill 771, by state Sen. Sheila Kuehl,  which extended the rights of nonfamily members to inherit rights of publicity through the will, as long as the deceased was a resident of California at the time of death; this law could be applied retroactively to those who had died before 1985. The Monroe estate thought this would be a good time to declare her domicile actually was California, not New York, as was claimed so long ago.

On Aug. 30, the U.S. Ninth Circuit Court of Appeals affirmed the district court judgment that judicial estoppel precluded  Monroe’s estate from advocating her California domicile at death, see Milton H. Greene Archives Inc. v. Marilyn Monroe, LLC.

In 2011, Martin Golden, a state senator in New York, introduced a bill on delebs similar to California’s law.  It is opposed by parties in the media industry and the New York Bar Assn, with claims the measure violates the First Amendment (see here).

But Monroe’s estate, ever optimistic, claims  it still has exclusive rights to her likeness under federal law, though such a national statute doesn’t exist, as yet.  Britain and much of Europe, by the way, end the right to control unauthorized use of individuals’ image, name or voice upon their death.

Here’s a legal prediction from beyond the grave: litigation over postmortem publicity rights willl live on, long after after most of this blog’s audience is dead, in California, of course.