The Right of Publicity: Why Marilyn Monroe Still Makes More Money Than You

The Right of Publicity: Why Marilyn Monroe Still Makes More Money Than You

Every year Forbes Magazine posts an article entitled, “The Top-Earning Dead Celebrities,” and in 2014, Marilyn Monroe came in at #6 with $17 million. The question is … how?

If you’ve been to Graceland, it’s easy to understand why Elvis is #2 of Forbes’ list. And Michael Jackson’s 1985 deal to purchase ATV, the company that owned the music publishing rights of the Beatles, as well as Jackson’s own musical accolades, undoubtedly explains why his 2014 earnings came in at #1 with $140 million. But as an actress, Marilyn didn’t have ownership over any of her work product—film royalties, yes, but not the licensing fees you’d expect to receive as a copyright owner. So where is the money coming from?

The money is coming from Marilyn’s right of publicity.

This article is going to teach you two very important lessons: (1) if you are a copyright owner, ALWAYS get a “name and likeness” release from people portrayed in your copyrighted work, and (2) if you are a famous person that people may one day want to exploit, don’t die in New York.

Let’s start with the Illinois Right of Publicity statute.

The “right of publicity,” also sometimes called a personality right, is the right to control and to choose “whether and how to use an individual’s identity for commercial purpose.” 765 ILCS 1075/10.

NOTE: The right of publicity is not the same as a copyright or trademark. Copyrights and trademarks are intellectual property rights governed by federal law that can be registered with the U.S. Copyright Office and U.S. Patent and Trademark Office, respectively. The right of publicity is a property right that can be transferred (licensed) to a 3rd party like a copyright or trademark, but it does not get registered to some database and it is governed by state law.

Under the Illinois’ Right of Publicity Act, “identity” is defined as “any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.” 765 ILCS 1075/1. “Commercial” is defined as “the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.

In other words, those “name and likeness” provisions your attorney insists on adding to your contracts are really important. Without such provision, insurers won’t cover you and distributors won’t work with you. An example of one such provision is as follows:

Lender (Actor’s loan-out company) hereby grants Producer the right to use Actor’s name, likeness and/or biography in connection with the production, distribution, and other exploitation of the Picture and all subsidiary and ancillary rights therein.

This provision is usually supplemented with a more lengthy release form that allows you to not only use the person’s name and likeness without infringing on his or her right of publicity, but it also allows you to distort that person’s image in all kinds of ways without getting sued for things like invasion of privacy, defamation, false light, and other personal or property rights.

TIP: For safety, I suggest getting a release from EVERYONE on set, not just the actors. The last thing you want is your boom pole operator suing you for infringement on his right of publicity because you included some “behind the scenes” footage in your film’s bonus materials.

So what happens if you infringe on someone’s right of publicity?

In Illinois, the answer is clear: you will have to pay the greater of (1) actual damages, profits derived from the unauthorized use, or both; or (2) $1000 … per violation. 765 ILCS 1075/40. Oh, you’ll also have to pay punitive damages and attorneys’ fees if you were particularly willful about it. 765 ILCS 1075/40; 765 ILCS 1075/55.

Now let’s get back to my example of Marilyn Monroe. Do you remember that Marilyn Monroe statue we used to have on Michigan Avenue? I haven’t seen the license agreements, but I would render a guess that we paid the sculptor, Seward Johnson, for use of his copyrighted sculpture (“Forever Marilyn”), and Seward paid Sam Shaw, for use of his copyrighted photograph from the Seven Year Itch “flying skirt series,” and Sam, in a post-right of publicity era, would have paid (or requested a release from) Marilyn Monroe to use her name and likeness in the photograph. Still with me?

Here’s where Monroe’s estate had an issue: not all states recognize a post-mortem right of publicity. Illinois recognizes the right for 50 years after death, but New York doesn’t recognize the right at all. And though Marilyn’s estate has been charging people all over the world to use her image, the New York courts argue that, because Marilyn died in New York, she has no such right. This of course is, has been, and will be appealed by Marilyn’s estate for the rest of eternity, but for now, Marilyn Monroe is still one of the top-earning dead celebrities in the United States.

Katherine (Kate) Imp is an entertainment attorney at Ramo Law PC and Chicago native. She specializes in film finance, production and distribution for clients in Illinois and across the country. Contact Kate at @KatherineImp or kate@ramolaw.com.

Disclaimer: The information in this column is intended for general information purposes only and should not be construed as legal advice.