Marilyn Merchandise Lawsuit Proceeds

Marilyn Monroe wears the pearl necklace given to her by Joe DiMaggio.
Marilyn in court (1954)

As the legal battle between Marilyn’s estate and merchandiser AVELA continues, the Hollywood Reporter reveals a new development.

“Now, another merchandising company, X One X Movie Archives, associated with AVELA and dragged into this dispute, has asserted its own counterclaims against the Marilyn Monroe Estate. This time, an attempt is being made to go the distance by cancelling trademarks and holding the Marilyn Monroe Estate liable for alleged monopolization and deceptive business practices.

The court filing on Friday (read here) says that when Monroe died in 1962, she bequeathed $25,000 to her personal secretary and divided the rest of her assets between her psychiatrist Dr. Marianne Kris and her acting coach Lee Strasberg. After those two died in the early 1980s, the estate landed in the hands of Strasberg’s widow Anna and Aaron Frosch.

In 2010, after more events happened including legal fights with some prominent photographers, an entity named ABG is said to have purchased Marilyn Monroe LLC, registered trademarks and established themselves as The Estate of Marilyn Monroe LLC.

X One X regards this all as misleading, reporting that other entities own trademarks and copyright to Marilyn Monroe films and characters while the purported official estate run by James Salter works with Leonard Green & Partners to bully others and perpetuate the idea that it holds exclusive rights to Monroe.

Cancelation of trademark registrations is being sought on the grounds that contested marks (like ‘Marilyn Monroe’) lack distinctiveness, only identify a deceased person rather than the source or origin of any product, and are purely functional in that they are used to describe a famous person in the public domain. The ABG group is also alleged to have made false statements to the U.S. Patent & Trademark Office to obtain trademark registrations.

The monopolization allegedly happens through a ‘a vertical scheme with its affiliate Leonard Green & Partners’ such that ‘ABG assures licensees that their ABG-licensed Marilyn Monroe-related products will sell exclusively in retailers owned by Leonard Green & Partners,’ precluding lawful competitors.

The counterclaim goes on to say that a judgment in favor of the Marilyn Monroe Estate would perpetuate a monopoly and that it ‘would outlast any period of copyright, would usurp the right of the public (and X One X) to make commercial use of public domain images, and would enable the ABG Parties to unlawfully restrain any use of Marilyn Monroe’s image, likeness or name in commerce.’

AVELA and X One X have a history of precedent-setting legal tangles that have defined the boundaries of intellectual property. Past battles include a skirmish with the Bob Marley estate and another with Warner Bros. This could be an even higher stakes legal fight with the potential of shaking up the Forbes dead celebrity earner list.”

Mini Marilyn Set For China

minimarilyn2The Mini Marilyn brand, launched last summer by ABG – the official licensing arm of Marilyn’s estate – is heading to China, reports the Wall Street Journal.

“Chinese film company DMG Entertainment has struck a deal with brand-development firm Authentic Brands Group LLC to develop projects for Mini Marilyn, a cartoon version of the late American actress. The two companies plan to develop the character for film, merchandise and in forthcoming retail and entertainment projects, said Dan Mintz, DMG’s chief executive and co-founder. He declined to disclose the financial details.

The companies are betting that Mini Marilyn, a cutesy cartoon version of her blonde bombshell image, will strike it big with Chinese audiences the way that characters like Hello Kitty and Mickey Mouse have.

While Marilyn Monroe isn’t a household name in China, Mr. Mintz said most Chinese consumers know ‘Meng Lu,’ Ms. Monroe’s Chinese name, and are familiar with the image of her holding down her white dress in the film The Seven Year Itch.

They also hope Mini Marilyn will have appeal beyond China. ‘This is a global play,’ said Mr. Mintz. ‘When you look at Marilyn and the figure that she is, no one comes close. Everyone knows her.’

DMG hopes Mini Marilyn will pull in women, who are driving the box office in China and in the U.S, said Mr. Mintz. While there’s little data breaking down China’s movie audiences by gender, e-commerce giant Alibaba Group Holding Ltd. said that growth of its online movie tickets is driven by women. In the U.S., 52% of moviegoers are women, according to data from the Motion Picture Association.

Mr. Mintz said Mini Marilyn will come to life in short previews over the next few months and then eventually in feature films, TV shows, short form digital content, video games, mobile apps, music and live venue attractions.”

 

Marilyn Picked to Promote Max Factor

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Marilyn will be the ‘new face’ of Max Factor cosmetics in 2015, reports Vogue Australia. ‘As an original client of Max Factor’s in the 40s,’ the article states, ‘the beauty company lays claim to transforming Monroe from a brunette Norma Jeane to the platinum beauty icon we all remember.’

Actually, Max Factor played no part in Marilyn’s blonde transformation. That honour goes to Sylvia Barnhart of Frank and Joseph Hair Stylists. And her glamorous look evolved over the years, with the help of make-up artist Allan ‘Whitey’ Snyder.

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However, three Max Factor lipsticks were sold as part of Marilyn’s personal beauty box, fetching $266,500 at Christie’s in 1999. And the bulk of her collection was acquired not from Max Factor, but Erno Laszlo and Elizabeth Arden. The box has since been displayed at Ripley’s in Hollywood.

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‘Marilyn made the sultry red lip, creamy skin and dramatically lined eyes the most famous beauty look of the 1940s and it’s a look that continues to dominate the beauty and fashion industry,’ says Pat McGrath, Global Creative Design Director of Max Factor.

This is true enough, although Marilyn didn’t achieve her stardom until the early 1950s. It may be more accurate to say that Marilyn inspired companies like Max Factor, rather than being transformed by them. She may well have consulted them personally on occasion, but if so, this has not yet been clarified.

Although she never endorsed Max Factor in her lifetime, Marilyn was posthumously featured in another of their ad campaigns, during the 1990s. The Max Factor Building in Hollywood includes a ‘Blondes Room’, displaying makeup, vintage articles and some of Marilyn’s clothing.

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Marilyn’s Estate Targets Clydebank Salon

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A Scottish hair salon, named after MM, has been forced to change its name after pressure from the licensing arm of Marilyn’s estate, reports the Clydebank Post.

As a fan, I’m always delighted to see tributes to Marilyn in shops, bars and cafes. I dislike this latest attempt to commodify her. In my opinion, Marilyn’s estate should leave fans alone.

“The salon named after the iconic American actress in Clyde Shopping Centre is being forced to change its name and kill off all connections with Marilyn.

This comes after owner Norah Yilmaz received a letter from the deceased film star’s estate, thousands of miles away in New York, threatening legal action.

The letter, from Authentic Brands Group warned Norah she faces a lawsuit if she failed to remove all traces of Marilyn from her salon.

Stunned Norah, 39, said: ‘They told me to take all social media, photos and the wallpaper of her down.’

‘I love the vintage era and Marilyn Monroe was a big part. So I’ve now decided to call the salon Vintage.’

The salon owner has been forced to shut down the Facebook business page she worked hard building up by giving away free spray-tans.

She said: ‘I had over 1400 people on my Marilyn Monroe page and I couldn’t get Facebook to let me change the name of it. I had to just start a whole new one.’

‘The really big issue was what were we going to call it. I wanted to call it ‘Glitz and Glam’ but the girls who work here all hated it. I knew I had to get the sign down as soon as possible but I couldn’t until I had a new name.’

Norah and the 11 beauticians are planning to give Marilyn her final send off on Hallowe’en.

She said: ‘The only thing I need to change is my card receipt machine because it still comes up Marilyn Monroe. On Hallowe’en we’re doing a theme that Marilyn Monroe has died in the salon. So all of our make-up will be half the face of Marilyn and the other half skeleton.’

‘She died in 1962 — and now she’s dying again in 2014 in Clydebank.’

Despite the legal threats, stress and the costly rebranding of the salon, Norah still has a soft spot for the 1950s icon.

‘I feel touched that the actual estate of Marilyn got in touch with me,’ said Norah. ‘Even though she’s died again here I still love her, I think she’s brilliant.’

Vintage salon in Clydebank Shopping Centre is now taking bookings for their Hallowe’en party this Friday, October 31.

For £20 you can have your scary special FX makeup done and enjoy a glass of wine. Contact Vintage on 0141 952 3777 to book.”

As Marilyn herself said, the people made her a star and it’s fans who keep her memory alive. Instead of persecuting them, her estate should pursue rogue journalists who propogate lies about her.

But as the estate’s official Facebook page routinely features fake quotes, I don’t see that happening anytime soon.

ABG Reveals Plans for Digital Marilyn

Marilyn sings - for real - to troops in Korea, 1954
Marilyn sings – for real – to troops in Korea, 1954

“That’s the trouble, a sex symbol becomes a thing. I just hate to be a thing.” – Marilyn Monroe, 1962

After recent news of a legal battle between ABG (Authentic Brands Group, the licensing arm of Marilyn’s estate) and a company known as Virtual Marilyn LLC, the Wall Street Journal reveals that ABG are planning to launch their own 3-D, digitised Marilyn. Crass hypocrisy or an exciting new venture? You decide…

“The iconic actress is getting digitally revived by Pulse Evolution, the company that brought to life Michael Jackson this past year at the Billboard Music Awards. They’ve signed a long-term deal with the rights holder to Monroe’s estate Authentic Brand Group(ABG) to develop a commercially viable digital replica of her for commercials, TV shows, films and even a live show.

The partnership was signed at the beginning of October and there’s already a four-year commercial deal in place that ABG CEO Jamie Salter says is with a Fortune 500 cosmetic company worth over $100 million dollars. The two companies plan to split profits 50/50 for revenue she generates through Pulse’s creation.

‘This is a digital asset that’s digitally distributal,’ says Pulse CEO Frank Patterson. ‘Popularly [they’re] being referred to as holograms because people don’t know how to talk about it. We’re talking about the digital likeness of humans. Digital humans are new to us as a society. There’s a lot of spaces where digital humans will become very useful.’

Patterson says these aren’t true holograms and that we’re years off from developing that technology. Instead, they’re a ‘3-D digital object.’

For Pulse and ABG, they’re proceeding with caution, while at the same time trying to monetize her with new technology. ‘There’s only one Marilyn Monroe in the world, and we’re going to be very careful with her,’ Salter says.

Still, while there may be just one Monroe, the possibilities of putting her into a live setting are much different than your typical real-life performer. ‘Unlike a typical show, Marilyn Monroe can be in more than one location at a time,’ Patterson says. ‘Why couldn’t we open a show in Vegas and Seoul at the same time?’

Pulse plans to hire a creative team of writers, directors, and costume designers to flesh out the live show Monroe would undertake. They’re already well underway in developing a show for Elvis Presley, who they secured a deal with in August.

‘We’re taking these assets and applying them to traditional business structures,’ Patterson says. ‘First having them appear in major venue installations – think of a casino appearance with a major, 52-week show commitment. Then rolling them out into touring presentations and special appearances, generating sponsorship and branded-content opportunities.’ He says that it would take about 18 months to roll out a show of this nature, including time to build Monroe’s digital persona. When asked about whether or not venues would be interested in something like that, the response was ‘overwhelmingly positive.’

For ABG, the focus seems to be more about continuing using Monroe’s image for commercial purposes, as she did in a 2011 commercial spot where her likeness was used alongside Charlize Theron for a J’Adore Dior ad. ‘We’re sticking with the best companies in that [fashion] space,’ Salter says. ‘We’ll be very careful when Marilyn Monroe takes a job from a model standpoint. We’re treating her no different than if Brad Pitt or Lady Gaga was our client.'”

Monroe Estate Opposes ‘Virtual Marilyn’

'Love Nest' (1951)
‘Love Nest’ (1951)

Marilyn’s estate is at the centre of yet another legal battle, according to the Hollywood Reporter.

“Virtual Marilyn LLC says it holds copyright registrations encompassing ‘audiovisual work and character artwork depicting a computer-generated virtual actress adopting the persona of Marilyn Monroe.’

The Marilyn Monroe estate has been threatening this virtual character for some time. More than two years ago, we wrote about a volley of legal letters upon talk that ‘Virtual Marilyn’ would be taken on the road to sing and interact with live music stars.

Since then, the Marilyn Monroe estate suffered a great legal loss. In August 2012, in the midst of a battle over licensed photographs, the 9th Circuit Court of Appeals ruled that the estate couldn’t claim in court anymore that the legendary actress was living in California at the time of her death. She was domiciled in New York instead. While such a detail as her place of residence at the time of a drug overdose might seem trivial, New York’s publicity rights laws are far less generous than California’s. Most importantly, New York doesn’t allow post-mortem publicity rights.

So forget about publicity rights, but what about other potential claims? The Monroe estate reportedly makes up to $30 million a year in licensing income, so the question is definitely important.

According to the new lawsuit, Monroe’s estate has conveyed word that ‘use of Marilyn Monroe’s identity and persona without the Monroe Estate’s prior authorization constitutes unfair competition and false designation of origin’ — claims grounded in the Lanham Act — and that its adversary couldn’t use or license ‘marks, names, logos, designs, avatars, or the like.’

So the company now owning ‘Virtual Marilyn’ is going to court for declaratory relief, citing both the previous 9th Circuit opinion, plus more precedents, like the U.S. Supreme Court’s very important 2003 Dastar ruling, which stands for the proposition that trademarks can’t be used as perpetual swords to counter copyrighted work falling into the public domain.

‘Accordingly, in view of these appellate precedents, it is difficult to fathom that the courts would somehow accord a longer period of private protection for a trademark than the time-period that governs the underlying publicity/persona rights from which the trademark interest derives,’ states the complaint filed in New York federal court by attorney Michael Wolk.

The plaintiff has designs of its own. It’s both attempting to knock down defendants’ intellectual property grab while maintaining its own authority to obtain trademark protection on its own ‘branding rights’ associated with the CG Marilyn Monroe. A ‘fractured ownership situation’ involving Marilyn Monroe is not a problem, it argues, because disclaimers can always be used to “make it clear to consumers that the Monroe Estate has no affiliation with the Virtual Marilyn character or the Virtual Marilyn brand.’

Interestingly, it’s remarked in the lawsuit that when the late actress was living, she never registered any aspect of her persona as a trademark and was conscious about who she belonged to.

As Monroe once said, ‘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.'”

 

ABG Unveils ‘Mini Marilyn’ Brand

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The official licensing wing of Marilyn’s estate, Authentic Brands Group, has announced yet another range of Marilyn-related merchandise, which looks quite sweet although ABG’s commercial ventures so far have been a mixed bag. It also raises issues of whether it is ethical to directly target younger consumers, but then, that is nothing new.

‘Mini Marilyn is targeted to girls, ages 8 to 16, with playful, age-appropriate styles,’ reports License Mag. ‘With her trademark blonde hair and red lips, Mini Marilyn is designed to empower girls to be confident, take risks and dream big…ABG will debut the new brand for the first time at Licensing Expo next week in Las Vegas, Nev. Target categories for the brand include apparel, accessories, tech accessories, toys, mobile apps and virtual goods.’

Anatomy of a Lingerie Ad

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ABG, the licensing arm of Marilyn’s estate, has launched yet another brand. Marilyn Monroe Envy is a range of lingerie – which is ironic, since Marilyn found underwear confining and avoided it whenever she could.

The cover image is a merging of two well-known Milton Greene photos. Some fans are unhappy with this, when there are so many thousands of gorgeous originals to choose from. However, Milton’s son Joshua has stated that a unique, one-off image had been commissioned for the advertising campaign.

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Merged image without lettering and colouring. Thanks to Fraser Penney
Merged image without lettering and colouring. Thanks to Fraser Penney

When asked if she wore anything at all to her famous calendar shoot, Marilyn memorably replied, ‘I had the radio on.’ However, at the foot of the page on the website, another sentence has been added – ‘I did too have something on.’ In fact, she never said this. The phrase ‘did too’ was not commonplace in Marilyn’s time, and makes her sound rather like a stroppy teenager!

While I understand the desire to keep Marilyn’s image up-to-date for marketing purposes, I can’t help feeling that her essence is being sidelined, and am doubly concerned that her estate seems to be encouraging this.

For Girls Who Wear Glasses

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Marilyn’s estate has teamed up with Allure Eyewear to create a new range of spectacles, reports Women’s Wear Daily. (The cherry pattern in the above model seems inspired by Marilyn’s rodeo dress from The Misfits, while the retro design recalls her near-sighted character, Pola, in How to Marry a Millionaire.)

“Inspired by the iconic actress, the eyewear includes animal-printed frames and upswept cat eye silhouettes. Each style is adorned with subtle Swarovski crystals for an extra note of glam. Marilyn Monroe eyewear brand will consist of ‘The Marilyn’ Limited Edition Sunglass which will retail for $495, the Silver Screen Sun collection that will retail from $98 to $168 and the Optical collection that will retail between $150 and $180.

Allure Eyewear will donate all profits from ‘The Marilyn’ sunglass to Hollygrove, which was once an orphanage where Marilyn lived as a child and is now an EMQ FamiliesFirst agency that helps children in crisis.”

Monroe Estate Sues Cafe Chain


Marilyn’s estate is suing the Marilyn Monroe Cafe chain for non-payment of photo licensing fees – a total of $18.35 million, reports TMZ. This sum is the remaining amount on a 20-year contract, in which the cafe owners agreed to pay $1 million annually. (Interestingly, at the time of writing, the cafe’s official website was down.)