For the last year I’ve come across tattoos in odd places. One day I’m walking to my favorite San Francisco coffee shop — Cafe Amici — and I bump into a group of teenagers. I look up and one of the boys is shaking a little tin cup and has a tattoo of a pink hippopotamus on his forehead. Not a sticker, not a temporary tattoo, but indelible ink on his forehead. A hippo.
Fast forward several months, I’m in line for an espresso at the same shop, and right in front of me is a guy with tiger stripes tattooed on his neck and face, and presumably on the rest of his body. He looks cool, but I hope for his sake he’s famous. Or at least rich.
Then, yesterday, a friend sends me a joke email entitled Why Can’t I Get a Job? that shows a host of 20-somethings with prominent facial piercings and tattoos, as well as — in a few cases — a cosmetic alteration designed to make the bearer look as though he starred in Hellboy and has little demon horns bursting from his skull. Funny, weird, a statement I’m not particularly sure I’m capable of understanding.
Finally, today I pass a kiosk that has a picture of movie star Megan Fox in lingerie, advertising something or other, and prominently displayed on her right forearm is her famous tattoo of Marilyn Monroe. Believe it or not, one of my first thoughts was “I wonder if Marilyn’s estate has publicity rights in the tattoo on her arm?” And then my mind spun down the twisted legal path of wondering if an argument could be made that Megan Fox is unfairly trading off of Monroe’s goodwill by permanently associating herself with Monroe — i.e., by virtue of having tattooed the iconic symbol onto her flesh. If someone did that with another trademark — say, the McDonald’s arches — would McDonald’s have a viable trademark infringement case against them? What if the individual prominently flaunted the tattoo in photo spreads across the world in a way that was clearly commercial (e.g., in advertisements) or in a way that perhaps disparaged the sainted patriarch of fast food? One can imagine a porn star with a Ronald McDonald’s tattoo named Ranni Macdonit that might cause offense in the same way that Mariah Carey was offended by porn-star-turned-politician Mary Carey’s attempt to trademark her stage name (which Mariah ill-advisedly opposed on the grounds that it would confuse the public). Intrigued by the Monroe question, I discovered a pair of federal court cases discussing the posthumous rights of Marilyn Monroe — Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc. and Shaw Family Archives Ltd. v. CMG Worldwide, Inc. — which held that because (a) Monroe died before California’s Celebrity Rights Act was passed in 1985, and (b) the state of New York does not recognize a right of publicity after the artist’s death, Monroe’s name, image, and voice are now in the public domain in the states of California and New York. By implication, they would also be in the public domain in any state that, at the time of Monroe’s death in 1962, did not recognize a right of publicity that survived the artist’s death.
In response to those rulings, California passed legislation that created descendible rights of publicity that last 70 years after death — retroactively — for any person who died after January 1, 1938. Armed with the newly-passed SB 771, in 2007 the heirs of Monroe’s estate moved for reconsideration in the Milton H. Greene case. While the court agreed that due to the passage of the bill, Monroe’s heirs had standing to assert Monroe’s posthumous right of publicity under California law, in a peculiar twist — because of inconsistent positions previously taken by Monroe’s estate before the California taxing authorities (which had the effect of drastically reducing her estate tax) — the court ruled that the heirs were barred from claiming that Monroe lived in California at the time of her death. Which meant “Game over, heirs.” Do Not Pass Go. Do Not Collect $200.
And this laid my query to rest. The public now owns Marilyn, so Megan Fox is at liberty to flaunt her Marilyn tattoo to all and sundry, without fear of prosecution from the grave. And should you, yourself, desire to adorn your body with an image of America’s great Hollywood diva, you may do so as well. Just don’t expect it to do for you what it did for Megan Fox.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.