Milton Greene was a renowned photographed in the 1950 and 60’s that was particularly well known for his work with celebrities, especially Marilyn Monroe.  After Monroe’s death, Greene’s company continued to sell photographs of Monroe.

In March, 2005, Monroe’s estate filed suit, claiming that the sale of those photographs violated Monroe’s “publicity rights.”  Generally, publicity rights are the rights of an individual to control the commercial use of his or her name, image, or likeness.  In some states, like California, such rights exist beyond the person’s death and violations can be prosecuted by their estate.  In other states, like New York, publicity rights are extinguished upon death.

The defendants moved for summary judgment, alleging that New York does not recognize a posthumous, descendable right of publicity, and because Monroe was a resident of New York upon her death, her estate’s claims are now barred; the estate argued instead that she was a resident of California.

The Court looked to numerous filings that were made in connection with Monroe’s probate proceedings that established that she was a New York resident, and thus permitted her to avoid paying California inherited tax.  The Court then applied “judicial estoppel,” which is an equitable doctrine designed to prevent a party from gaining an advantage by taking inconsistent position with the court – or in other words, to prevent a litigation from “playing fast and loose” with the court.

Thus, the Court held that Monroe could not claim she was a New York resident on the one hand to avoid paying taxes, and now on the other hand claim she was a California resident to prevail in this matter.  As such, it ruled in favor of the defendants and dismissed the case.

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