August 23, 2016
Originally posted 2018-11-19 11:19:05
By Christina Severineo | amdlawgroup.com
The advent of holographic depictions of deceased celebrities has been trending, with artists such as Michael Jackson being projected and performing on stage with other performers. The hologram of Michael Jackson during the 2014 Billboard Music Awards was truly a bittersweet experience for audience members. Nonetheless, the growth in use of avatars, holographs, and CGI in live performances has given rise to several legal issues, including who has patent rights to project these deceased celebrities? In the case of Marilyn Monroe, yet another lawsuit has been filed against her estate by Virtual Marilyn, LLC. Marilyn’s statutory heirs have been stubborn for years as evidenced by a string of lawsuits regarding her image and brand since her death in 1962.
Virtual Marilyn’s complaint asserts that it holds copyright registrations including “audiovisual work and character artwork depicting a computer-generated virtual actress adopting the persona of Marilyn Monroe.” This threat of legal recourse hasn’t been the first regarding the use of a CGI Marilyn. Roughly two years ago, threats of a virtual Marilyn being taken on tour to perform with living stars resulted in her heirs sending a string of cease and desist notifications to companies proposing the idea. However, the current complaint asserts that Virtual Marilyn, LLC has its own branding rights to the CGI version of Marilyn, and that “fractured ownership” of her image is appropriate since disclaimers warning consumers would defray any likelihood of confusion.
Marilyn’s estate asserts that “Use of Marilyn Monroe’s identity and persona without the Monroe Estate’s prior authorization constitutes unfair competition and false designation of origin,” and, “its adversary (Virtual Marilyn, LLC) couldn’t use or license, ‘marks, names, logos, designs, avatars, or the like.’” Any claim of publicity rights will likely be unavailable because a previous decision by the 9th Circuit Court of Appeals in California ruled that no one could claim she was living in California when she died. That court decision determined Marilyn was actually domiciled in New York, therefore New York laws on publicity rights would apply. Generally speaking, New York law on publicity rights tends to be stricter than California’s. More specifically, New York prohibits any post-mortem publicity rights.
Virtual Marilyn, LLC is seeking declaratory relief in order to retain its right to continue using its computer generated Marilyn, while avoiding any more threats of litigation by the estate.
“Marilyn Monroe, The Prince and the Showgirl, 1” by Milton H. Greene – Promotional photograph for the 1957 film The Prince and the Showgirl. Licensed under Public domain via Wikimedia Commons – http://commons.wikimedia.org/wiki/File:Marilyn_Monroe,_The_Prince_and_the_Showgirl,_1.jpg#mediaviewer/File:Marilyn_Monroe,_The_Prince_and_the_Showgirl,_1.jpg