CEASE & DESIST LETTERS FROM BEYOND THE GRAVE – OLD BLOOD & GUTS EDITION

bgtankHere is a marketing conundrum. How do you brand a $575,000 specialty vehicle, built on a Ford truck chassis, that is designed to look like a tank? If you answered “Name it after General George S. Patton” give yourself a 21-gun salute. But here’s the rub—in one of the most astute tactical moves of his storied military career, Patton died in the State in the California which, as we have seen before, is especially solicitous of the eternal publicity rights of anyone who ever died on its soil. In a lawsuit filed the federal court in Los Angeles, the heirs and assigns of “Old Blood & Guts” have brought this heavy artillery to bear on U.S. Specialty Vehicles.

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O MARILYN, MY MARILYN

Imagine for a moment that you earned a nickel every time that Marilyn Monroe’s “name, likeness, or persona” was exploited for commercial purposes.  Now imagine it was hundreds or thousands of dollars every time.   The California Legislature  tried very hard to gift wrap that bonanza for the beneficiaries of Monroe’s estate, primarily her acting coach Lee Strasberg’s widow, Anna.  In 2007, it passed a law which provided that the state’s statutory right of publicity — first created in 1985 — would be deemed to have existed at the time of death of any personality who died earlier, and was a property right that would pass to the residual beneficiaries of the personality’s estate even though it is not mentioned in the decedent’s will.

Monroe died in 1962, in a home that she owned in Brentwood, California.  But last week, in an opinion that infuses the legal doctrines of choice of law, privity, domicile, and judicial estoppel with all the glamour, mystique, and ineffable sorrow that keeps Marilyn Monroe among the ranks of Hollywood’s most bankable stars 50 years after her death, the U.S. Court of Appeals for the Ninth Circuit rejected Strasberg’s claims and left Monroe’s name, likeness, and persona in the public domain.   In its conclusion, the Court quoted Monroe’s own rueful assessment of her celebrity:  “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.” However appropriate a coda to Monroe’s memoirs its ruling may be,  how did the Court arrive at a legal result so completely at odds with the professed intent of the California Legislature?  The answer is perhaps best summed-up in another, possibly apocryphal, Monroe aphorism quoted by the Court: “If you’re going to be two-faced, at least make one of them pretty.”

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