SHAW FAMILY ARCHIVES V. CMG WORLDWIDE
486 F.Supp.2d 309 (2007)
NATURE OF THE CASE: CMG (D) moved for summary judgment on the right of publicity claims
and Shaw (P) filed a cross-motion for summary judgment against Ds.
FACTS: This dispute arises out of the alleged sale of a T-shirt at a Target retail store
in Indianapolis, Indiana on September 6, 2006, which bore a picture of Marilyn Monroe and
the inscription of the 'Shaw Family Archives' on the inside neck label and tag, and the
alleged maintenance of a website by SFA and Bradford through which customers could purchase
licenses for the use of Ms. Monroe's picture, image and likeness on various commercial
products. CMG Worldwide, Inc. (D) filed a complaint against the Shaw Family Archives (P) and
Bradford Licensing Associates in Indiana. D alleges that Ps have violated Marilyn Monroe's
right of publicity by using her name, image and likeness for commercial purposes without
consent. Prior to being served in the Indiana action, P and others brought suit in this
court against D seeking a declaratory judgment on whether there is any postmortem right of
privacy or publicity in the name, likeness, and image of Marilyn Monroe as well as damages
for certain alleged copyright violations, tortious interference with contractual relations
and tortious interference with prospective economic advantage. Ds filed a motion to dismiss.
Ps filed a motion in the Indiana Court, seeking dismissal of the Indiana action on the
grounds that the Indiana Court lacked personal jurisdiction over them and/or a transfer of
the Indiana action to this court. This court issued a memorandum order staying P's New York
Action pending a determination of the motion to dismiss for lack of personal jurisdiction in
the Indiana action. Indiana ordered that the Indiana action be transferred to this court
under 28 U.S.C. 1404(a). This court issued a stay on the second-filed New York action. The
court then ordered the matters consolidated. Both parties then moved for summary judgment.
P's cross motion for summary judgment argued, inter alia, that the Indiana Right of
Publicity Act does not create any independent postmortem publicity rights but rather
provides a mechanism for vindicating preexisting publicity rights when infringements occur
in the state of Indiana. P argued that Monroe's right of publicity could not survive her
because she died domiciled in New York, a state that does not recognize postmortem publicity
rights; and that, regardless of where Ms. Monroe was domiciled at the time of her death, D
cannot show an ownership interest in Marilyn Monroe's right of publicity because she lacked
the testamentary capacity to devise by will a right she did not own under the law of any
state in which she could have been domiciled at the time of her death in 1962. Marilyn
Monroe died testate on August 5, 1962. Her will, did not expressly bequeath a right of
publicity, but did contain a residuary clause.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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