re: CMG
On the face of it, it might look like this is a simple
fight over who can charge fees for the rights to photographs
of celebritiesthe photographer, or the estates
of the subject? Along with millions of dollars
this involves the right to reproduce a name, likeness,
or other recognizable aspects of ones persona. It
also might change the laws of publicity rights, the
legality of prior contracts, the privileges and ownership
of intellectual property rights, the rights of heirs,
the control of the images of deceased celebrities
and the way this photographic art can be displayed,
portrayed and marketed.
Inked talked with people on both sides of the issue.
Filing one federal lawsuit is CMG Worldwide, the company
that holds the rights to the estate of Marilyn
Monroe. CMG Worldwide defines itself the premier
company for representing the intellectual property
and control of a famous persons likeness for families
and estates of (over 400) deceased celebrities.
Countering are suits by the estates of various photographers
in order to protect their artistic property.
Dismayed and disconcerted about this lawsuit and
its consequences is Chuck Murphy of One West Publishing
which specializes in Fine Art Limited Edition
photographic prints. They are the exclusive authorized
agent for Shirley de Dienes and the estate of
Andre de Dienes, as well as represent other renowned
photographers. Part of their catalog includes
Marilyn by Andre de Dienes. Its a collection of
photographs taken by Andre de Dienes, of a young,
aspiring model he met one day in 1945 named
Norma Jean ( Baker) Dougherty, a.k.a, Marilyn Monroe.
We bring this up because both sides have are
arguing about who owns the image of MM.
The lawsuit has only recently been filed. We may
not know the outcome for years. But it has sent a
chill through parts of the publishing, gallery and
collectors arenas, who claim that an unfavorable
outcome could not only stifle their respective growth,
but deprive artists of their intellectual property and
change the face of an industry.
Written By Jeff Dondero
Inked Magazine Editor in Chief
First up was Chuck Murphy.
Why was this lawsuit filed in federal court?
The laws governing the laws of publicity are on a
state to state basis. Twenty five states recognize
rights of publicity after you die. Only a few recognize
successive rights and the rest dont recognize
any rights of publicity at all. CMG has been asserting
their exclusive rights to the images of Marilyn
Monroe worldwide for over 10 years. Although she
died in California, she was a resident of New York
State whose law states that when a resident dies so
does the right to their image. California recognizes
right to laws of publicity for 70 years after your
death. However, they also recognize the laws of the
state of each resident. CMG has lobbied so aggressively
in their home state of Indiana that they have
the most liberal rights of publicity in the country.
There is no other state in the union that has these
kinds of laws. Consequently, CGM has been generating
these lawsuits in Indiana. Now they want to
change the right to publicity on a national level.
How dramatic would these changes be?
It basically changes present copyright law for the
country indefinitely. It could make legal contracts
null and void that were entered into in good faith 50
years before. For example, it could void the agreements
between de Dienes and Marilyn Monroe and
compromise any rights of de Dienes heirs when
they publish his copyrighted photographs. So they
not only want to change how things will be in the
future, but how things have been done for 50 years.
How aggressive is CMG with this lawsuit?
They are trying to assert a right of publicity with
Marilyn Monroe that New York law states they dont
have as of today. If they are successful they will be
able to do this with all of the estate they represent.
CMG is even going after a documentary film titled
Marilyns Man, about her first husband, Jim
Dougherty. They are suing the Shaw Family Archives,
a photographer, Jim Dougherty, her ex-husband, and
Bradford Exchange, the licensing company behind
the film. They have no right of publicity to Marilyn
Monroe.
What does this mean to the photographer?
What they are trying to change will affect photographers
like Andre de Dienes, Sam Shaw, Milton Greene
(all photographers who shot of Marilyn Monroe) and
their heirs. By the way, it was Andre de Dieness
photos that got her the first screen test with RKO. It
will effect any other photographer who takes a picture
of someone who might be famous some day.
For CMG it means that every image out thereincluding
those in public domain, they will exercise
the right of publicity and charge a fee. Most of the
time CMG will ask for a fee higher than the copyright
holder and they want all of there money in advance.
In effect they are trying to change the law and how it
works retroactively. They attempting to make the
right of publicity more important than the copyright
it self.
Why should de Dienes heirs have the right
to his images, his business?
When a man works all his life to build a business
model, let say in the case of Andre de Dienes, he
pays his models, he has signed model releases,
he licenses his images for 50 years making a
living. Then he die and passes his business on to
his heirs, his heirs should have a right to continue
with the business model with out any problem
from anyone based on the law. His business
should be handed down to his heirs like any other
business. But CGM claims that all images, no
matter who took them, no matter if they were
agreed to, paid for or how legally they were
produced at the time, they have a right to a fee
based on the right of publicity. Marilyn Monroe was
very happy with the work Andre de Dienes was
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IMAGE
doing and never had a problem with his licensing
when she was living.
Has it effected OneWest Publishings business?
Im the publisher of Fine Art Limited Editions and I
have an exclusive right to the de Dienes work. Back
in 2002 Taschen published a book called Marilyn
by Andre de Dienes that was not infringing on
anyones rights. CGM issued a cease and desist
asserting right of publicity with Marilyn Monroe. New
York has no right of publicity independent of its right
of privacy statute. The right of privacy, under the
Civil Rights laws of New York, terminate upon death,
thereby also terminating the right of publicity.
Can this effect photo galleries and collectors?
If this law is passed any situation where the celebrity
is dead, a company like CMG will have the rights
to charge a fee for the image of the celebrity. That
fee could well be larger than the money made by a
company publishing a limited edition or by the Estate
of the photographer. This will effect merchandising,
publishing, its crazy what it will do.
