Right of Publicity

Milton Greene v. Marilyn Monroe LLC: How a Star's Domicile Decided Who Owns Her Image

The Ninth Circuit held that Marilyn Monroe's estate, having sworn for forty years that she died a New Yorker to dodge California estate tax, was judicially estopped from claiming California domicile to capture a posthumous right of publicity worth millions.

January 3, 2026
Vintage Hollywood theater marquee and lights at dusk
Whether an estate can license a star's identity often turns on where the star was domiciled at death. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, Nos. 08-56471, 08-56472 & 08-56552 (9th Cir. Aug. 30, 2012), reported at 692 F.3d 983, is the rare estate-planning case that doubles as a master class in the licensing of a celebrity’s identity. Writing for a panel that included Circuit Judges Alfred T. Goodwin and Kim McLane Wardlaw and District Judge William K. Sessions III (sitting by designation), Judge Wardlaw confronted a question that the entertainment-licensing industry had treated as settled in the estate’s favor: did Marilyn Monroe’s heirs inherit a descendible, posthumous right of publicity that they could license against the rest of the world? The answer turned not on the value or fame of the image — both immense — but on a single, decades-old factual representation about where Monroe was domiciled when she died on August 5, 1962. Because the estate had insisted for forty years that she died a domiciliary of New York, it was judicially estopped from claiming, when it became lucrative to do so, that she died a Californian.

At a glance

  • Case: Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, Nos. 08-56471, 08-56472 & 08-56552 (9th Cir.), 692 F.3d 983
  • Decided: August 30, 2012; opinion by Judge Wardlaw (Goodwin, J., and Sessions, D.J., by designation)
  • Posture: Affirming the Central District of California’s grant of summary judgment for Milton Greene; consolidated appeals
  • Holding: Monroe’s executors having represented for four decades that she died domiciled in New York, the LLC successor was judicially estopped from asserting California domicile; under New York law no descendible post-mortem right of publicity existed at her 1962 death, so nothing passed under her will’s residuary clause
  • Why it matters: A celebrity estate cannot license a right of publicity it does not own, and ownership can be foreclosed by the estate’s own prior litigation and tax positions

Licensing an identity the estate may never have owned

Marilyn Monroe LLC, together with its licensing agent CMG Worldwide, built a business on the premise that it controlled the commercial exploitation of Monroe’s name, image, and likeness. The premise required the estate to actually hold a property right capable of being licensed. Monroe executed her will in New York City on January 14, 1961, naming her attorney Aaron Frosch as executor; after her death the New York Surrogate’s Court admitted the will to probate on October 30, 1962. The will contained a standard residuary clause but said nothing about a right of publicity — unsurprisingly, because no American jurisdiction recognized a freely transferable, descendible post-mortem right of publicity in 1962.

That gap is the analytical heart of the case. A residuary clause can only pass property the testator owned at death (or, under some modern probate regimes, property the estate later acquires). California tried to engineer ownership retroactively. The state’s statutory post-mortem right of publicity, originally enacted in 1984 and codified at California Civil Code section 3344.1, did not reach personalities who died before January 1, 1985. In 2007, after an earlier round of litigation went against the Monroe estate, the Legislature passed Senate Bill 771, amending section 3344.1 to deem the right to have existed “at the time of death” of pre-1985 decedents, to make it “freely transferable” and “descendible,” and to allow it to pass “through the residual clause” of a pre-existing will. On its face, SB 771 was tailor-made to hand the Monroe estate exactly the asset it wished to license.

But a California statute can resurrect a California property right only for a decedent to whom California law applies. Whether California law governed Monroe’s testamentary estate depended on where she was domiciled when she died — and that is where the licensing theory collapsed.

Domicile at death as the choice-of-law switch

In American conflicts law, the disposition of a decedent’s personal property is governed by the law of the decedent’s domicile at death. A post-mortem right of publicity, as an intangible asset passing through a will, follows that rule. So the dispositive question was binary: did Monroe die domiciled in California, whose 2007 statute would create and pass the right, or in New York, which then recognized no descendible post-mortem right of publicity at all?

The factual record on domicile was not close, and it had been built by the estate itself. Frosch’s affidavits in the New York probate established that Monroe maintained a fully furnished New York apartment, retained New York business interests, and expressed an intention to make New York her permanent home. The New York Inheritance Tax Appraiser reported that she “died a resident of the County of New York.” Critically, these positions were taken to secure a concrete benefit: New York domicile spared the estate California’s inheritance and estate taxes. For four decades, in probate filings and collateral litigation, Monroe’s representatives consistently told courts and taxing authorities that she was a New Yorker.

Under New York law as it stood in 1962, the right of publicity was not descendible; it was extinguished at death. If New York law governed, there was simply no asset for the residuary clause to carry, and the 2007 California amendment was irrelevant because California law never reached the estate. The estate’s only escape was to recharacterize Monroe as a California domiciliary — the very position its predecessors had spent forty years disclaiming.

Judicial estoppel and the cost of forty years of consistency

The Ninth Circuit called this “a textbook case for applying judicial estoppel.” The doctrine prevents a party from prevailing on one position and then, in a later phase or proceeding, relying on a clearly inconsistent one, in order to protect the integrity of the courts. The court applied the familiar factors: the estate’s later position (California domicile) was clearly inconsistent with its earlier one (New York domicile); courts and taxing authorities had accepted the earlier position; and the estate had derived an advantage — avoidance of California death taxes — from it.

Two refinements in the opinion carry weight beyond Monroe. First, the court treated the representations of successive executors as attributable to the estate as a continuing entity, so the LLC could not disclaim positions taken by Frosch and his successors decades earlier. An estate cannot reset its litigation history by reorganizing into a limited liability company. Second, the court clarified that bad faith or “chicanery” is a factor to be weighed, not a mandatory prerequisite — judicial estoppel can apply even absent a finding that the party deliberately deceived the earlier tribunal. The estate had, in the court’s framing, taken one position for forty years and reversed it the moment reversal became financially advantageous, which was enough.

The result: the district court’s summary judgment for Milton Greene was affirmed. Monroe LLC could not assert California’s posthumous right of publicity, and therefore could not enforce that right against Greene or anyone similarly situated.

Open questions

The decision resolves Monroe’s status but leaves the contours of estate licensing unsettled. It does not address how judicial estoppel applies where an estate’s prior domicile representations were ambiguous, inconsistent across proceedings, or never accepted by any tribunal — the doctrine’s predicate is a prior position a court relied upon. Nor does it decide whether a legislature could, consistent with due process and the Contracts and Takings Clauses, create a brand-new descendible property right and assign it to a long-deceased person whose estate was administered under the law of a different state; the court avoided the constitutional question by resolving the case on estoppel. The opinion also leaves open how its domicile-at-death rule interacts with states that have since enacted broad post-mortem statutes reaching non-domiciliaries, a tension that continues to generate forum disputes for celebrity estates.

Implications

  • Domicile is the gating fact in identity licensing. Before an estate licenses a deceased celebrity’s name or likeness, counsel must confirm which state’s post-mortem law governs — and that is fixed by domicile at death, not by where licensing revenue is booked.
  • Tax positions are litigation positions. Estate-tax-driven domicile elections can permanently foreclose later assertions of a more favorable property regime; the savings on death taxes cost the Monroe estate a publicity right potentially worth far more.
  • Reorganizing the estate does not launder its history. Successor entities inherit the prior positions of executors for estoppel purposes.
  • Retroactive statutes cannot cure a choice-of-law defect. SB 771 could create a California right only for those to whom California law applied; it could not reach an estate governed by New York law.
  • Licensees and agents bear chain-of-title risk. CMG and the LLC built a licensing program on an asset the estate did not own; diligence on the underlying right, not just on the marks and copyrights, is essential.

Frequently asked questions

Did Marilyn Monroe’s estate lose its rights in her photographs and trademarks too? No. The case concerned only the right of publicity — the right to control commercial use of her identity. It did not adjudicate copyrights in particular photographs or any registered trademarks, which are governed by separate federal regimes and were not the basis of the holding.

Why did California’s 2007 statute not save the estate? California Civil Code section 3344.1, as amended by SB 771, could create and pass a post-mortem right of publicity only for a decedent to whom California law applied. Because Monroe was held (by estoppel) to have died domiciled in New York, New York law governed her estate, and New York then recognized no descendible post-mortem right.

What is judicial estoppel, in plain terms? It is a doctrine that stops a litigant from taking one position, prevailing or gaining an advantage on it, and then asserting a clearly contradictory position later. Its purpose is to protect the integrity of the judicial process, and the Ninth Circuit found Monroe’s estate had done exactly what the doctrine forbids.

Authorities and sources