http://uk.finance.yahoo.com/news/selling-dead-124404596.htmlSelling the dead
By Alix Kirsta | Telegraph – Thu, Feb 2, 2012 13:06 GMT
The sale for up to $30 million of the rights to Marilyn Monroe's image has put the spotlight on who makes money from stars whose names are worth more dead than alive
Last year’s announcement that the licensing rights to Marilyn Monroe’s image were bought for a rumoured $20-30 million from her estate by the Canadian marketing firm Authentic Brands Group sent tremors through the world of advertising and marketing. This year is the 50th anniversary of her death, but the sale proves that after half a century the Monroe ‘brand’ remains so valuable an investment that it can swap hands as readily as today’s million-pound football transfers. According to Joshua Salter, the CEO of Authentic Brands Group, whose offices are in New York (Frankfurt: A0DKRK - news) , there can be no question over the soundness of his investment: ‘[Monroe is] the most iconic personality in the world.’
But the Monroe buy-out is far from record- breaking. In 2008 CKX Inc (NasdaqGS: CKXE - news) , a US entertainment conglomerate, paid $100 million for an 85 per cent stake in the Elvis Presley estate, which earns an average $50 million annually through advertising, merchandising and entertainment deals.
The Monroe deal is the latest in a series of legal actions and commercial transactions involving her, and they have highlighted continuing battles over the marketing of dead stars. In America, licensing the images, names and voices of ‘delebs’ (dead celebrities) has become a multi-billion-dollar business. As stars’ heirs and agents lock horns with film studios and photographers over the right to control these lucrative images, a vigorous debate over the ethical, financial and legal implications of post-mortem rights of publicity continues to divide the media. Should showbusiness and sports celebrities have the power, through their heirs, to control their publicity after death? And is it possible to exploit a dead star’s image while also respecting his or her memory?
Much is at stake now that the internet, computer games and advances in digital technology flood the market with realistic images of deceased personalities. Speculation is rife that a film starring Monroe or James Dean in a new full-length role could be in the pipeline. US revenue generated by dead celebrities is today estimated at an annual $2.25 billion, which does not include revenue from TV or online commercials and other advertising. Forbes magazine’s annual rich list of ‘top earning dead celebrities’ put the total 2009 earnings of Michael Jackson at $275 million, Elvis Presley $60 million, Steve McQueen $6 million and Marilyn Monroe $8 million. Albert Einstein’s earnings, at $10 million, reflect the soaring sales of Nike trainers (his image is used in the ads) and the Disney Corporation’s bestselling Baby Einstein range.
The realisation that such names can be worth more dead than alive has propelled some stars’ estates into costly legal battles to protect their perceived rights. The estate of Albert Einstein sued General Motors (NYSE: GM - news) over a car advertisement showing the scientist’s head superimposed on a rippling nude torso. The chat-show host Johnny Carson’s heirs went to court to prevent the marketing of a ‘Here’s Johnny’ portable lavatory. Meanwhile, the entertainment and publishing industries are now braced for what they regard as a possibly disastrous reversal of existing New York State law which, as in Britain, does not recognise a celebrity’s publicity rights after death.
Legal recognition of a dead personality’s publicity rights is a new, evolving concept, unlike long-established copyright laws that protect musical compositions, books, paintings and other artistic works worldwide from unauthorised use for up to 70 years after the creator’s death. But in Britain, much of Europe (Chicago Options: ^REURUSD - news) and parts of the US including New York a celebrity’s right to prevent any unauthorised use or commercial exploitation of his or her image, name, signature or voice ends with their death. Although some US states, notably California, recently passed laws permitting celebrities to bequeath their publicity rights to their heirs, where a celebrity lived officially at the time of their death ultimately determines whether their estate can continue to claim those rights or not. If Clint Eastwood, a lifetime California resident, died tomorrow, state law would allow his family to continue controlling the use of his image. A native New Yorker such as Woody Allen would lose his publicity rights on death. And, had Allen or Eastwood become UK residents, their estates would also no longer have any right to control the use of their images after their deaths. In 2000 the estate of Diana, Princess of Wales, brought an action in California challenging the Franklin Mint, a US manufacturer, over its right to market a line of Princess Diana dolls and other memorabilia. Although the estate claimed that the Franklin Mint had violated California’s ‘right of publicity’ laws, the court dismissed that claim on the grounds that the Princess died a British resident, and Britain has no such laws.
In February 2011 the New York State Senator Martin Golden introduced a bill, dubbed the ‘dead celebrities bill’, intended to reverse New York law. Under new legislation it would be a criminal offence to use the image of any deceased New York celebrity for advertising, merchandising or other commercial purposes without permission from their legal heirs. The ban would last 70 years after their death. Critics of the bill, which has not yet been passed and is being reintroduced this year, say it would stifle the creative freedom of writers, producers, publishers and performers, limit commercial spin-offs and lead to costly litigation. Many claim it would undermine the cornerstone of the US constitution, the right to free speech. According to Diane Kennedy, the president of the New York Newspaper Publishers Association, ‘New York is not California. We are not this celebrity-obsessed state, but the media capital of the world. This bill has been consistently opposed by all media industries, including publishers, photo archives, theatrical producers, online businesses, also the New York State Bar Association. It violates the First Amendment.’
The ghost of Marilyn Monroe looms large over the debate. A driving force behind Senator Golden’s proposed bill is the recent high-profile litigation involving Monroe’s estate and its former exclusive licensing agent Mark Roesler, the founder of America’s leading ‘dead celebrity’ agency, CMG Worldwide. Until recently Monroe was CMG’s highest-earning star on a deleb client list that includes James Dean, Errol Flynn, Humphrey Bogart, Marlon Brando, Bette Davis, Diana, Princess of Wales, and such sportsmen as Babe Ruth, Arthur Ashe and Jackie Robinson. After Monroe’s death in 1962, her acting coach Lee Strasberg, the founder of Manhattan’s Actor’s Studio, inherited 75 per cent of her estate, which on his death in 1982 went to his widow, Anna Strasberg, a former actress. Monroe’s psychoanalyst Marianne Kris inherited 25 per cent, which passed to London’s Anna Freud Centre on Kris’s death. As the new custodian of Monroe’s estate, in 1996 Anna Strasberg hired CMG to negotiate licensing of the star’s name and image for use on T-shirts, jeans, mugs, chocolates, wine (‘Marilyn Merlot’), dolls and countless other novelty items.
Alone in the first five years following CMG’s acquisition of the Monroe brand, the agency entered into 700 licensing agreements featuring her image; the income from one ad for Mercedes Benz earned the estate $6.5 million in a single year. In 1999 Strasberg controversially commissioned Christie’s to auction many of Monroe’s personal possessions, including her many famous gowns and outfits. The sale netted more than $13 million for the estate, upsetting many fans, who pointed out that in her will Monroe had requested that her belongings should be distributed among her friends.
The writing appeared on the wall in 2007. In a series of lawsuits, the children of three of Monroe’s photographers, now deceased, challenged the right of the estate and the CMG agency to control all rights to Monroe’s image. In the view of the photographers, who owned the copyright to thousands of Monroe pictures, their photographic studios had a perfect right to license these images for publishing and merchandising deals, and saw no reason to split the profits with CMG and the Monroe estate. More to the point, they claimed that the estate in any case had no exclusive legal claim to Monroe’s image.
The photographers proved to be Strasberg’s and CMG’s nemesis. Sam Shaw, Milton Greene and Tom Kelley were established photographers with whom Monroe formed close professional and personal relationships. As freelance photographers they retained the copyright to their work, and died leaving valuable photographic archives. These included thousands of Monroe photos, such as Sam Shaw’s billowing skirt shot from The Seven Year Itch and Tom Kelley’s nude calendar pose. The photographers’ families inherited the archives and for a while joined forces with CMG and Anna Strasberg to license use of the Monroe pictures.
But by 2007 the relationship had turned sour. The photographers’ families had had enough of paying licence fees to CMG for the use of their own property. Under the terms of most US merchandising agreements, merchandisers usually pay up to 15 per cent of their gross receipts in royalties to the licence holder. Although the photographers’ share would normally be half of that 15 per cent slice, Strasberg and CMG claimed a 75-90 per cent cut of it, leaving the photographers with 10-25 per cent. Until then they had agreed to pay up mostly out of goodwill, and to ensure Monroe’s image was professionally and ethically represented. But the New York lawyer David Marcus (NYSE: MCS - news) , Sam Shaw’s grandson, recalls their dismay at the tawdriness of much of the current Monroe merchandising.
‘There were huge numbers of cheap knick-knacks out there, including a phone representing a figure of Marilyn,’ Shaw says. ‘When the phone rang, air was released and her skirt flew up. And these were the people in charge of protecting her image and legacy!’ A rumour still making the rounds is that when Anna Strasberg voiced concern about the Marilyn phone, the manufacturer reassured her, ‘But it’s not rude. You can’t see her panties.’
According to Joshua Greene, the son of Milton Greene, to whom Monroe was especially close they formed the company that produced Bus Stop and The Prince and the Showgirl CMG never seemed to have an overall business plan for promoting her image. ‘They were only interested in the money. Instead of working with us as a team, they started beating us photographers up, taking up to 90 per cent of licensing deals and expecting us to be happy with 10 per cent. We even had to fight for our photographic credits. In the end we all had enough that’s what led to the lawsuit,’ he explains. Denied power of veto over the use of their photographs, Sam Shaw’s family and the estates of Milton Greene and Tom Kelley brought identical actions in the New York and California courts, challenging CMG’s and Strasberg’s claim to Monroe’s publicity rights.
The litigation raised a key question: who owns Marilyn Monroe? Were posthumous publicity rights included in the other property she left Lee Strasberg, and did she in fact have the legal power to bequeath him those rights? This was a landmark case that would have major implications not only for Monroe’s estate but also for the heirs and agents of dead celebrities throughout the US.
When Monroe died in 1962, nowhere in America recognised posthumous rights of publicity; the right of a personality to control or profit from commercial uses of their name and likeness died with them, leaving deceased stars’ images up for grabs. By the 1960s some dead stars’ families had begun to challenge the law, albeit unsuccessfully. In 1966 the widow and son of the horror star Bela Lugosi began an 11-year lawsuit against Universal Studios but failed to prevent it pocketing all profits from merchandise based on Lugosi’s 1930s Dracula films. The family of Rudolph Valentino were denied an injunction to prevent transmission of a TV drama about the star’s life. In the 1980s a long and costly lawsuit brought by Fred Astaire’s widow, Robyn, against a videotape manufacturer which included footage of Astaire in a series of dance instruction videos, also ended with the court finding in favour of the manufacturer.
Largely in response to public opinion over these cases, the state of California introduced the Celebrities Rights Act in January 1985, creating publicity rights for deceased celebrities whose names, voices, signatures, photographs or likenesses had commercial value at the time of their death. This publicity right was available to anyone who died after January 1985; it lasted 70 years and could be bequeathed by celebrities to their heirs. But in 2007, when the photographers brought their case against CMG and Marilyn Monroe’s estate for the right to use her photographs, the courts in California and New York ruled that Monroe could not pass on her publicity rights at her death, since California’s right of publicity statute did not exist in 1962. Therefore those rights ceased on her death.
Hollywood leapt into action. With astonishing speed, six weeks after the Marilyn Monroe ruling in May 2007, California State Senator Sheila Kuehl, a former child actress, introduced a new bill, allowing any star who had died since January 1 1938 to transfer their publicity rights to their heirs. With aggressive lobbying by the Screen Actors’ Guild and many stars, including CMG and its clients, the bill was fast-tracked through the legislature and signed by Governor Arnold Schwarzenegger in October 2007.
As a result of California’s new legislation, victory seemed on the cards for CMG and Monroe’s estate. But, in 2008, they were dealt another blow. This time the courts ruled that because Monroe’s legal executor filed her will for probate in New York, where she still owned the Manhattan (Xetra: A0X9G1 - news) home she shared with her former husband Arthur Miller, she was officially a New York resident at the time of her death. Since New York does not recognise post-mortem publicity rights, her estate could not claim them, even under California law.
Despite appeals by CMG that continue to this day, the courts have upheld their 2008 decision. According to Mark Roesler of CMG, the courts’ decision to classify Monroe as a New York resident amounts to a travesty. ‘This was an absolutely ludicrous decision and we are confident, on appeal, that the courts will come down firmly in our favour,’ he tells me adamantly. ‘Marilyn was born in California, grew up in California, worked and lived there, had a driver’s licence there, owned a house there, died and is buried there. You couldn’t get to be much more of a resident of California.’
Court documents suggest otherwise. In California, Judge Morrow claimed CMG was attempting to play ‘fast and loose with the courts’ and using ‘underhand tactics’ to gain control of Monroe’s rights of publicity. In 2008 73-year-old Anna Strasberg was fined $200,000 in a Manhattan court by Judge Colleen McMahon, who accused her of ‘unacceptable shenanigans’ during the case, which she called a ‘three-ring circus’. Strasberg was ordered to pay $30,000 in sanctions for delaying the handing over of documents showing that Monroe was legally a New Yorker on her death.
By testing its rights of publicity claims in court, CMG took a huge gamble and lost. Sam Shaw’s and Milton Greene’s families seem genuinely saddened at the estate’s reversal of fortune, which they believe was avoidable. ‘If we had all worked as a team there would have been no litigation,’ claims Joshua Greene, who has not been recompensed for the millions of dollars owing to him in unpaid licensing fees. He stresses that with no agents involved, he enjoys very different, relaxed working relationships with the families of such stars as Sammy Davis, Frank Sinatra, Judy Garland, Audrey Hepburn, John Wayne and Richard Burton.
Although allegations that the Monroe estate is bankrupt have been denied by Strasberg’s lawyers, legal documents indicate that they have spent between $14-17 million in legal fees, although Greene puts it at nearer $20 million. Greene believes the sale of Monroe’s licensing rights to Authentic Brands Group (ABG), which also represents Bob Marley, has not only saved the estate from financial disaster but also her image may go more upmarket. New 2012 products and campaigns involve Dolce & Gabbana, Dior, Gerard Darel and Smash, an NBC TV series about a fictional Marilyn-themed Broadway (SES: E1:B69.SI - news) musical.
One mystery remains: what will happen to the 25 per cent of Monroe’s estate inherited by her Manhattan psychoanalyst, Marianne Kris? When she died in 1980, Vienna-born Kris, a close friend of Sigmund Freud’s daughter Anna, left her share of the estate to London’s Anna Freud Centre for children with emotional needs. In 1990 Anna Strasberg went to court in an unsuccessful attempt to acquire that quarter of Monroe’s legacy.
Insiders claim the centre recently experienced a shortfall in its funding, and statements filed at Companies House record that ‘the centre’s share of royalty income… was allocated to uphold and protect the [estate’s] Rights of Publicity. This licensing income is… expected to reduce significantly in the next several years so the centre is committed to diversifying its source of income to replace these revenue incomes.’ The centre declined to discuss the case or provide a formal statement, suggesting a determination to keep details of current legal negotiations, possibly with Strasberg and ABG, under wraps.
With the ink barely dry on the contract transferring Monroe’s licensing rights to ABG, it is too soon to estimate how much of a financial killing can be made from future merchandising deals. Much may depend on whether Senator Golden’s proposed bill is passed in New York this year: the new law would prohibit any unlicensed advertiser or manufacturer from using the image of a New York-based celebrity for 70 years following their death. This would give ABG even greater scope to market Monroe’s image. Other deceased personalities whose heirs would benefit include Malcolm X, John Lennon, Jimi Hendrix, Stan Laurel and Oliver Hardy, and sports stars Babe Ruth, Mickey Mantle, Lou Gehrig and Arthur Ashe.
Among those vigorously lobbying New York’s legislators in support of Senator Golden’s bill is CMG’s Mark Roesler, a powerful voice given Indiana-based CMG is the world’s largest deleb agency, and that he helped draft a law in Indianapolis providing celebrities with 100 years’ post-mortem publicity protection. ‘I have been fighting to introduce new legislation in New York since the 1990s,’ he admits. ‘It is proving a really aggressive effort to pass this, and we’ve been up against industry giants. The Googles of this world have been our biggest opponents.’
Other influential lobbyists include such ageing stars as Al Pacino, Martin Sheen, Sophia Loren and Yoko Ono. Liza Minnelli recently stated, ‘I believe only [my] family or those entrusted with this right can truly know how to maintain the integrity, respect and dignity of a loved one’s name, image and likeness.’ According to Al Pacino, ‘I feel like one’s likeness and image should be protected in some way and not abused or denigrated for the sake of profit.’