Monroe's estate can't block photos

A federal appeals court accused Marilyn Monroe's estate of flip-flopping for financial gain Thursday and said the estate has no right to prevent California photographers from displaying and selling pictures of the Hollywood sex goddess.

The central issue before the Ninth U.S. Circuit Court of Appeals in San Francisco was whether Monroe was a resident of New York, where she kept an apartment, or California, where she was found dead of a drug overdose in 1962 in the Los Angeles-area house she had bought while working on a film.

For 40 years, the court said, administrators of her estate, incorporated as Marilyn Monroe LLC, had argued that she was a New York resident in legal proceedings, reducing its taxes in California and defeating an attempt to gain inheritance by a woman who claimed to be Monroe's daughter.

But in this case, the estate claimed the star had resided in California. Under legislation Marilyn Monroe LLC sponsored in 2007 after losing an early ruling over the rights to the photos, the state allows heirs of long-dead celebrities to control the commercial use of their names and images.

New York has no such laws. In Thursday's decision, the court said Monroe's estate can't backtrack from its previous position that she lived in that state, whose laws will govern the dispute with the photographers.

Monroe's representatives "changed their position when it was to their great financial advantage," said Judge Kim Wardlaw in the 3-0 ruling.

She chose a quote widely! attributed to Monroe as a suitable reproach: "If you're going to be two-faced, at least make one of them pretty."

The ruling allows studios founded by two Monroe photographers, Milton Greene and Tom Kelley, to profit from pictures they took of her without paying licensing fees to the estate. Kelley's photos include shots of a young, nude Monroe on a red velvet blanket.

Monroe's will, probated in New York, did not mention the right to make commercial use of her image, but after bequeathing specific amounts to various beneficiaries, left the rest to her former acting coach, Lee Strasberg. His widow, Anna Strasberg, heads Marilyn Monroe LLC.

Last year, the court noted, Forbes Magazine's list of "top-earning dead celebrities" ranked Monroe third, with $27 million in income generated by her name and likeness. Her estate could control "most, if not all" of that revenue if granted a right of publicity, Wardlaw said.

Terri DiPaolo, a lawyer for Marilyn Monroe LLC, said the ruling applies only to state law and does not diminish ! the compa! ny's power to control use of her name and image under federal trademark law. The estate's activities, DiPaolo declared, "will continue unchanged."