Addressing the issue of judicial estoppel, the U.S. Court of Appeals for the Ninth Circuit affirmed that Marilyn Monroe’s estate is estopped from asserting the late actress’ rights of publicity under California law, finding that 40 years of judicial proceedings supported the late actress being domiciled in New York at the time of her death, a state which does not recognize posthumous publicity rights. Milton Green Archives Inc. v. Marilyn Monroe LLC, Case Nos. 08-56471, -56472, -56552 (9th Cir., Aug. 30, 2012) (Wardlaw, J).

In March 2005, Marilyn Monroe’s estate and its licensee sued Milton Greene Archives Inc. in Indiana claiming ownership of Marilyn Monroe’s rights of publicity and alleging that Milton Greene violated such rights by commercially exploiting Monroe’s image and likeness without authorization.  Milton Greene countersued in California, seeking declaratory judgment that the estate did not own Monroe’s publicity rights.  The cases were consolidated in California, where the lower court granted summary judgment in favor of Milton Greene.  The lower court found that while California’s right of publicity statute would have permitted Monroe’s right of publicity to pass to the estate through the residual clause of Monroe’s will, the estate was judicially estopped from advocating that Monroe was domiciled in California when she died.  Monroe’s estate appealed.

The 9th Circuit affirmed.  Describing the case as a textbook case for judicial estoppel, the 9th Circuit found that Monroe’s estate was precluded from taking a plainly inconsistent litigation position that Monroe died domiciled in California when it had consistently argued that Monroe was a domiciliary of New York in 40 years of judicial proceedings.  From 1962 until his death in 1989, the original executor of Monroe’s will, Aaron Frosh, repeatedly argued in judicial proceedings that Monroe was a New York domiciliary at the time of death.  Following his death, Anna Strasberg (a party in the instant case) became executor of Monroe’s estate and successfully defended the estate against an inheritance lawsuit in 1992 by representing that Monroe died domiciled in New York.  Reasoning that privity lies between an administrator of an estate and the beneficiaries of the estate for estoppel purposes, the 9th Circuit held that the representations made by Frosch and Strasberg are attributable to the estate.  The 9th Circuit also found that the lower court’s conclusion that permitting the estate to assert that Monroe died a domiciliary of California would unfairly allow it to obtain a second advantage by gaining the immense value of Monroe’s publicity rights, which were valued at $27 million in 2011, was supported.

The 9th Circuit affirmed the lower court’s grant of summary judgment in favor of Milton Greene, to dignify the several decades of judicial proceedings and to discourage litigants from “playing fast and loose with the courts.”  The court found that, as Monroe died domiciled in New York, and as New York does not recognize a postmortem right of publicity, the estate did not inherit such rights through Monroe’s will and cannot enforce them against others.