Shaw Family Archives v. Cmg Worldwide

486 F.Supp.2d 309 (2007)

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Nature of the Case

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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.