What’s in a Name?
Friday, April 14th, 2006
Although Marilyn Monroe’s “candle burned out long ago,” her image lives on through multi-million dollar licensing agreements for everything from posters to my favorite tie featuring one of Andy Warhol’s Marilyn prints. These agreements exist under state laws that recognize or grant the “right of publicity” to celebrities who are deceased. The “right of publicity” is used by celebrities and their heirs to prevent their identities from being used for commercial purposes without first obtaining permission and paying a licensee fee for such use. California’s right of publicity statute extends this protection for a period of 50 years after the person’s death, while in New York, publicity rights of dead celebrities are not protected. And therein lies the basis for a current courtroom drama worthy of the silver screen. On one side, the wife of Marilyn Monroe’s former acting coach and her business partner CMG Worldwide Inc. argue the actress was a Californian entitling them to her licensing rights. The other side, representing photographers who hold copyrighted photos of the film star, claims she was a New Yorker which does not recognize publicity rights of deceased celebs.
For decades, living celebrities have relied on right of publicity laws to collect monetary damages, injunctive relief, legal fees and punitive damages from unauthorized use of their “identities.” Depending on the state, one’s “identity” may include an individual’s name, signature, likeness (including look-alikes), voice (including sound-alikes), and other distinctive indicia of a person’s identity. Consider the late Johnny Carson who sued and won when a portable toilet manufacturer used “Here’s Johnny” and “The World’s Foremost Commodian” to describe its product.
Professional singer and songwriter Tom Waits was awarded $2.6 million in damages for a radio commercial that used a “sound-alike” singer who deliberately imitated his voice while performing one of Waits’ songs. A jury awarded Vanna White $400,000 when a commercial featured the image of a 
robot with a blonde wig, wearing a red glittered dress and turning letters in what appeared to be a futuristic set of “Wheel of Fortune”. And last year, Gov. Arnold Schwarzenegger claimed an unauthorized “bobblehead” doll showing him in a suit with an assault weapon and bandolier of bullets violated his right of publicity under California law.
Advertisers and agencies are well aware of right to publicity issues and requirements for proper licensing agreements that need to be signed prior to production, regardless if a celebrity is living or deceased. But should we need reminding, there will always be lots of “publicity” surrounding high profile cases like the ones involving Vanna, The Arnold or long deceased legends such as Marilyn Monroe.