Fifty years after the untimely death of film legend Marilyn Monroe, the courts are apparently still hearing challenges over her estate and her taxes.
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The latest case was decided last Thursday in a long-running legal battle between Monroe’s estate and the estate of her friend and photographer Milton Greene. The case involved publicity rights and the ability of the Milton H. Greene Archives to sell photos that he took of the iconic actress. Greene died in 1985 and Monroe in 1962, and both estates are now controlled by outside entities.
After her divorce from playwright Arthur Miller and before her death at age 36 of a sleeping pill overdose, Monroe bequeathed the bulk of her estate to her mentor at the Actors Studio, Lee Strasberg (now fondly remembered by fans of “The Godfather Part II” for his performance as gangster Hyman Roth). About 25 percent of her estate went to her psychiatrist, Dr. Marianne Kris, and $40,000 to her secretary, May Reis. Kris died in 1980, bequeathing her share of the estate to the Hampstead Child-Therapy Clinic of London, now known as the Anna Freud Center for the Psychoanalytic Study and Treatment of Children.
After Strasberg died in 1982, his share went to his wife, Anna. She became executor of the estate in 1989 after the death of Monroe’s original attorney, Aaron Frosch, who had drawn up her will.
Anna Strasberg set up a limited liability company known as Marilyn Monroe LLC in 2001 to oversee the assets of the estate, with 75 percent controlled by her and 25 percent by the Anna Freud Center. They later sold their rights in 2010 to another limited liability company, the Estate of Marilyn Monroe LLC, but Strasberg retained a minority role, according to Reuters.
Monroe LLC and its licensee CMG Worldwide filed suit in 2005 against the Milton H. Greene Archives and Tom Kelley Studios claiming ownership of Marilyn Monroe’s right of publicity and alleging that the Greene Archives were violating Monroe LLC’s rights by using Monroe’s image and likeness for unauthorized commercial purposes, including the advertising and sale of photographs of the screen goddess. Kelley was a photographer who had worked with Greene and also shot photos of Monroe.
The Greene Archives and Kelley Studios then countersued Monroe LLC, CMG Worldwide and Anna Strasberg, seeking a declaration that Monroe LLC did not own Monroe’s right of publicity. In 2007, a district court in California sided with Greene and Kelley, ruling in a summary judgment that Monroe LLC did not own Monroe’s right of publicity. The court noted that at the time of Monroe’s death in 1962, the states of New York, California and Indiana did not recognize “a descendible, posthumous right of publicity.”
A month later, in direct response to the court decision, California State Senator Sheila Kuehl, a former child actress according to Courthouse News Service, introduced legislation to provide that the statutory right of publicity in California would be deemed to have existed at the time of death of any deceased personality who died before Jan. 1, 1985, and thus would be freely transferable and descendible to their estate. The law was introduced specifically to abrogate the court’s summary judgment orders in the Monroe case.
Based on the passage of that law, Monroe LLC sought reconsideration of the district court’s grant of summary judgment. But the case turned on whether Monroe was domiciled at the time of her death in California or New York. The court acknowledged that the law change in California would have allowed Monroe LLC to inherit the right of publicity retroactively, but it agreed with the Greene Archives that New York law applied if Monroe was domiciled in New York at the time of her death. Under New York law, which Monroe LLC had unsuccessfully also tried to change, Monroe’s right of publicity would have been extinguished at her death.
The Court of Appeals for the Ninth Circuit reviewed the district court’s ruling and decided last week that it agreed with the lower court, noting that Monroe LLC had spent 40 years asserting that Monroe had died whilst domiciled in New York in order to minimize the estate taxes that it had to pay.
Monroe had died in California after being fired by 20th Century Fox studios for repeated absences and tardiness during the filming of the never completed “Something’s Got to Give.” But the court noted that she maintained her New York apartment and staff throughout the period when she was in Hollywood filming what turned out to be her final scenes before the camera. The appeals court found that during the 40-year probate proceedings, her original estate executor, Frosch, had consistently represented in numerous proceedings that Monroe was domiciled in New York when she died, successfully avoiding substantial California estate taxes. The estate paid a total of $777.63 in California inheritance taxes in 1967, though it was later forced to pay $51,243 in past due California income taxes and $12,810 in penalties in 1975 for royalties from profit participation agreements. Until recently, the court noted, Anna Strasberg had also represented that Monroe died domiciled in New York.
“This is a textbook case for applying judicial estoppel,” Judge Kim McLane Wardlaw wrote in a stinging rebuke. “Monroe’s representatives took one position on Monroe’s domicile at death for forty years, and then changed their position when it was to their great financial advantage; an advantage they secured years after Monroe’s death by convincing the California legislature to create rights that did not exist when Monroe died. 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. Monroe LLC is judicially estopped from taking the litigation position that Monroe died domiciled in California. Our conclusion in this regard is guided by the need to preserve the dignity of judicial proceedings that have taken place over the last forty years and to discourage litigants from ‘playing fast and loose with the courts.’”
If she were alive today, Marilyn Monroe could have told them a lot about playing fast and loose on the silver screen, which is why the public still adores her a half century later.