First, a disclaimer... I am not a lawyer, nor do I play one on TV... The following are my personal opinions only and should not be construed to be either legal or even sane advice...
I had heard that there were issues with photos of certain dead celebrities but I really didn't have any details.... The Nov/Dec issue of American Photo has an interesting article regarding several photographers who are pitted against the wife of the heir to Marilyn Monroe.
Seems when Marilyn died in 1962, her estate passed to her mentor, Lee Strasburg. Mr. Strasberg died in 1982 , leaving his estate (including Marilyn's estate) to his wife Anna Strasberg. She personally managed licensing images of Marilyn for several years before forming a company called Marilyn Monroe LLC in 1986. Mrs. Strasberg and MM LLC claimed the right to licensing fees for ANY image of Marilyn Monroe based on a 1985 law controlling "postmortem rights of publicity". Under this law, the photographer (or holder of the copyright) and/or his own heirs must pay a fee to MM LLC any time the photographer's image of Marilyn is sold for commercial use.
Several photographers and their heirs are contesting this claim due to the opinion that the 1986 law did not include prior celebrity deaths so Marilyn had no "postmortem rights of publicity" Earlier this year courts in California and New York sided with the photographers and agreed that Marilyn's estate did not include this condition.
MM LLC is naturally appealing and a bill is under consideration in CA to make the 1986 law apply to celebrities who died earlier (including Marilyn). This bill is expected to become law, thus granting to MM LLC the rights and revenue stream they desire.
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Now, my problems with this whole situation.
1. Most, if not all of the photographers had/have model releases signed by Marilyn herself. Unless specific rights were reserved by the model (Marilyn herself in this case) all rights belong to the photographer.
2. MM LLC's actions infringe on the copyrights of the photographers and inhibit their (or their heirs) ability to profit from their property.
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My proposed solution if CA passes the new bill and enables the infringement on the photographer's rights... Each photographer should remove every photo they have of Marilyn Monroe from commercial availability for the forseeable future. This would dry up the revenue stream to MM LLC. But, you might say, shouldn't celebrities and their heirs be able to control use of their likenesses as they choose?
This is true to some extent, but when the model is in a public place they have forfited a certain amount of privacy or expectation of control over who takes their photo or how it is used. Also, as has already been stated, most of the photographers at the center of this situation have signed model releases from Marilyn. Sign a release and you have given up your most of your rights to control the image (except in certain libelous/slanderous cases).
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Of course, MM LLC is not the only company profitting this way off of other people's work, but they are, for the moment, the poster child. This "rule of law" or "interpretation of law" is a potential legal issue we might all have to face at some time. Particularly if you take an outstanding image of some pretty young model and 10 years later she becomes the next big thing and gets killed in a car accident. Her heirs could claim a piece of your pie every time you sell your photos (even though you have an iron-clad signed release).
Opinions anyone??? UPDATE
The online issue of American Photo reports that the law has been passed in CA and was signed by Governor S.. It goes into effect on 1 Jan 08...
Last edited by MRRiley; 10-26-2007 at 06:42 PM.
Reason: added disclaimer and update
Originally posted by Tom S. 
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