What a Ninth Circuit Rights of Publicity Decision Means for Christmas Perfume Ads

by Raizel Liebler
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We observe that the lengthy dispute over the exploitation of Marilyn Monroe’s persona has ended in exactly the way that Monroe herself predicted more that fifty years ago: “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.”

Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 1000 (9th Cir. 2012)

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Christmas shopping season is time for perfume ads. And this year, in addition to claims for the bods of others and white diamonds, there are two ad campaigns that feature Marilyn Monroe for two different perfumes: Chanel No. 5 by Chanel and J’adore by Christian Dior.

How are these ads both able to exist at the same time? The Ninth Circuit in the decision cited above, stated that because Monroe died while domiciled in New York and New York does not have a post-mortem right of publicity, her persona is in the public domain. The details are a bit more complicated, as stated by Tyler Ochoa, including that there is a trademark in “Marilyn Monroe” and that

although Monroe’s likeness is now in the public domain as a matter of state law, anyone wishing to reproduce a specific photograph[, sound recording] or motion picture of Monroe will still have to negotiate with the owner of the federal copyright in that work.


So both of the perfume companies likely licensed two different copyrighted works allowing for these ads to both exist. For Chanel No. 5, a previously unreleased recording capturing Monroe’s original words from a 1960 interview with Georges Belmont, then the editor of Marie Claire:

“You know, they ask me questions. Just an example: ‘What do you wear to bed? A pajama top? The bottoms of the pajamas? A nightgown?’ So I said: ‘Chanel No.5’, because it’s the truth. And yet, I don’t want to say ‘nude’. But it’s the truth!”

But Monroe’s use of Chanel No. 5 was already a well-known fact from the mid-1950s.


For Dior, the licensing seems to be of film footage — and in some versions of this ad, Monroe whispering “Dior”. And Marilyn isn’t the main focus of this campaign. But the connection to Dior is also one that existed during her lifetime — she wore Dior dresses.


Hence, licensing two different Marilyn copyrighted lines of images/sound/video led to two different advertising campaigns. If she was still alive, it is not likely that both campaigns would be running at the same time, since she would also need to license her rights of publicity, but with her death, her persona can be used by competing products at the same time. And these two versions are only possible therefore due to the Ninth Circuit decision, allowing a dead star to star in commercials for competing products.


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