It’s hard to argue that a decedent who died at home was a resident of somewhere else, but the estate of Marilyn Monroe, who was found dead in her Brentwood home in 1962, has always maintained that she was a domiciliary of New York. The estate’s executor took that position in probate proceedings and in dealings with California tax authorities, which found that most of Monroe’s assets were exempt from state inheritance taxes. But now Monroe’s heirs are claiming she was domiciled in California because they prefer California law on the right of publicity.
In 1992, the estate asserted Monroe’s New York domicile at death to defeat the claim of her alleged omitted heir and biological child, Nancy Miracle. So-called “after-known” children who may inherit in California under Prob C §21622 may not inherit in New York.
Now her heirs are claiming she was domiciled in California to cash in on her right of publicity under California law. Forbes magazine estimates that Monroe earned $27 million between October 2010 and October 2011, making her the third highest-earning deceased celebrity after Michael Jackson and Elvis Presley.
California law allows for a posthumous right of publicity (CC §3344.1), permitting a cause of action for the unauthorized use of a deceased personality’s name, voice, signature, photograph, or likeness. The injured party can recover actual damages caused by the unauthorized use as well as any profits derived from the use.
By contrast, New York doesn’t recognize a posthumous right of publicity.
Here’s how it all started: in 2005, Marilyn Monroe LLC sued Milton Greene Archives, Inc., claiming ownership of Monroe’s right of publicity. At the time, CC §3344.1 didn’t apply to personalities who died before the law was enacted, and the district court granted summary judgment against the LLC. The California legislature responded by amending the statute to apply retroactively.
The LLC sought reconsideration based on the change in the law. The court granted the request, but again granted summary judgment against the LLC on the ground that it was judicially estopped to assert that Monroe was domiciled in California when she died.
The Ninth Circuit Court of Appeals affirmed in Milton H. Greene Archives, Inc. v Marilyn Monroe LLC (9th Cir, Aug. 30, 2012, Nos. 08–2013, 08–2013, 08–56552) 2012 US App Lexis 18419. The court described the suit as “a textbook case for applying judicial estoppel.” The decision concludes:
Marilyn Monroe is often quoted as saying, `If you’re going to be two-faced, at least make one of them pretty.’ There is nothing pretty in Monroe LLC’s about-face on the issue of domicile…. We observe that the lengthy dispute over the exploitation of Marilyn Monroe’s persona has ended in exactly the way that Monroe herself predicted more that fifty years ago: “I knew I belonged to the Public and to the world, not because I was talented or even beautiful but because I had never belonged to anything or anyone else.”
For comprehensive coverage of posthumous publicity rights in California, turn to CEB’s California Business Litigation §§10.20–10.23. Also check out CEB’s Estate Planning for Special Assets §8.35. On omitted heirs, go to CEB’s California Will Drafting §§35.2–35.8.
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