Jonathan Pink — Entertainment, Internet and New Media Partner at Lewis Brisbois, LLP Rotating Header Image

Like a Candle in the Wind — Ninth Circuit Snuffs Out the Appeal Filed by the Monroe Estate’s

With Apologies to Elton John . . .

Well goodbye Norma Jean, the Ninth Circuit has now affirmed that your estate is estopped from asserting your rights of publicity, though they never knew you at all.

You had the grace to hold yourself while the Ninth Circuit crawled out of the woodwork and whispered that 4 decades of prior judicial positions taken by your estate supported the court’s finding that you lived in the Big Apple at the time of your death (rather than in that little house, on the little Helena, in Brentwood). They crawled out of the woodwork and whispered into your brain that New York does not recognize posthumous publicity rights. See Milton Green Archives Inc. v. Marilyn Monroe LLC, Case Nos. 08-56471, -56472, -56552 (9th Cir., Aug. 30, 2012) (Wardlaw, J).

And it seems to me that you lived your life/Like a candle in the wind/Never knowing – when your estate sued the Milton Greene Archives claiming ownership over your rights of publicity that in California — that while Civil Code Section 3344.1 would have permitted your right to pass your publicity rights to your estate through the residual clause in your will, your estate would argue you lived elsewhere.  And now that it would be judicially estopped from arguing you were domiciled in Brentwood when died. Nor could know that when your estate appealed, though the justices would have liked to have known you (though they were just kids), that appeal would burn out long before your legend ever did. 

(Ugg — ok, I know this is a stretch — work with me, here!)

Oh the press still hounds you as all the papers say the lower court got it right, and the 9th affirmed, finding that your estate is estopped given that it argued from 1962 until 1989 that you were a New Yorker (at the time of death).  So shut out from California (as Elton sang), loneliness remains the toughest role you ever played, and pain the price you paid.  Yep, the court ruled that privity lies between an estate’s administrator and its beneficiaries (for estoppel purposes), such that the representations the administrators made are attributable to – and cannot be rejected by – the estate itself.

So goodbye Norma Jean, and goodbye to the millions your estate might have made from your publicity rights.  This, from the lawyer on the 22nd floor who sees you as something more New York’s native child.

Ok, back to work.

Jonathan Pink received his MFA from UCLA’s School of Film and Television (1988), and was an award winning screenwriter before becoming a nationally-recognized, intellectual property and business lawyer. He currently leads Bryan Cave LLP’s Internet and New Media Team, where he has defended artists, writers, publishers, filmmakers, musicians, music publicers and Internet companies against copyright, trademark, rights of publicity and other intellectual property claims.  Jonathan co-led the defense in a series of copyright infringement lawsuits asserted against one of the biggest bands in the history of pop music, and currently represents clients ranging from globally recognized media corporations, to a broad spectrum of content creators.

Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world's largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at jonathan.pink@bryancave.com, and his full profile can be viewed at www.bryancave.com.

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