Who Owns the Rights to "Virtual Marilyn" Monroe? UPDATED

The Monroe estate is currently warring with a company over a planned holographic Marilyn Monroe concert-a battle which could set the precedent for all holographic performances to c

Who Owns the Rights to “Virtual Marilyn” Monroe? UPDATED

The Monroe estate is currently warring with a company over a planned holographic Marilyn Monroe concert—a battle which could set the precedent for all holographic performances to come.

-Lucia Peters

Marilyn Monroe

First Tupac; then Freddie Mercury; and now, guess who’s up next for the holographic treatment? None other than Marilyn Monroe!… Or is she? Not if a sticky legal battle can help it—a legal battle which could set the standard for all holographic “performances” to come. Big? Heck yes. Let’s take a closer look, shall we?

Here’s what’s going down according to the Hollywood Reporter: Not too long after the Tupac hologram made its debut at Coachella this year, a company called Digicon Media developed a plan to hold a “live” Marilyn Monroe concert. With a working title of Virtual Marilyn Live: A Musical Celebration of the Birth of the Pop Icon, the concert would feature a projection of the late great legend of the silver screen, singing and dancing her little digital way alongside live music stars.

But there’s a problem (of course): The Monroe estate is apparently keeping a super close eye on Digicon—and if the company goes through with the concert, there could be an enormous lawsuit in the works. Why? We have the technology to bring dead stars back to life—but what sort of rights are required to pull off these kinds of spectacles and who holds them?

The Hollywood Reporter got their hands on some of the letters making the circuit between Digicon and Paul Bost, the attorney who is representing the Monroe estate, so in looking at these, we can get a better idea of what’s going on here. In December of 2011, the estate sent Digicon a cease-and-desist letter claiming that “Virtual Marilyn” infringed upon its intellectual property—and that Digicon immediately stop using any “marks, names, logos, and designs… based upon the identity and persona of Marilyn Monroe.” Digicon, however, claims that in copyrighting a human persona, it has done something that no one else has ever done before. Furthermore, since the estate has apparently known about the development of this project for more than fifteen years, the digital studio believes that the statute of limitations has passed on any legal objection. Finally, “Virtual Marilyn” is said to be completely distinguishable from the real-life Marilyn.

The letters go back and forth for some time; head on over to the Hollywood Reporter to read some of them, but the general gist of it all is this: The Monroe estate objects to the project on the grounds of who holds the rights to Marilyn; Digicon tells them that there’s nothing the estate can do legally to stop the project; lather, rinse, repeat.

Read The Lost Marilyn Monroe Nudes: How Norma Jeane’s Pics Differ From Today’s Stars’

The most interesting part of this whole thing, though, is probably that Marilyn herself was basically a fictional character created by the woman born as Norma Jeane. The Monroe estate’s argument is that they own the rights to this character—or, in legalese, the “personality and identity rights and rights in the MARILYN MONROE trademark.” As such, any unauthorized use of this character is illegal and will be prosecuted. Digicon, meanwhile, keeps referring to a lawsuit where the Monroe estate tried to assert violations of its personality rights against photographers who licensed for products like t-shirts and posters and such. The estate lost that one—it had to do with where Marilyn was when she died (New York) and what sort of property rights she had at the time—so as far as Digicon is concerned, “the Estate is now Judicially Stopped from claiming ANY Privacy, Publicity or related rights to name, image or likeness obtained through testamentary inheritance in New York.”

So: What do you think about all this, Bettys? Who’s in the right here? Whatever the determination finally is in this case could be massive, as it would give a precedent about who owns the rights to the dead person’s image and personality for all future holographic shows.

For the curious, here’s an early video of “Virtual Marilyn”:

Personally, I find this whole “Let’s bring every celebrity ever back from the dead!” trend a little weird. Yes, for those of us who weren’t around to see stars like Marilyn perform while she was alive, it’s kind of neat to think that we could experience it now; but at the same time, apparently we are incapable of letting fallen stars rest in peace anymore, and that’s not so cool. Also, I find Digicon’s “Virtual Marilyn” in particular kind of creepy. I’m not entirely sure why, but that video gives me the heebie-jeebies.

But more importantly, I think the estate of the dead celeb does need to be able to have some say in whether or not the star’s image is used in a holographic performance. I don’t really have any legal reasons for this opinion, as I am not a lawyer; but it just sort of feels RIGHT, if you know what I mean. If we’re going to be using the image of someone who is sadly no longer with us for entertainment purposes, the least we can do is get the blessing of the people who represent that someone in death to go ahead with it. These were all real people once, after all.

Maybe that’s just me, though. What do you think? Should Digicon back down, or should the Monroe estate?

UPDATE: We’ve been contacted by a source involved in the debate, and at the moment, here’s where everything stands according to them:

– On March 5, 2012, the US Copyright Office investigated and agreed to register the first ever copyright on an original character, VM2-Virtual Marilyn. Virtual Marilyn is officially a computer generated virtual actress that lives in cyberspace and performs in film, tv, music, and Internet that adopted the persona of Marilyn Monroe. So, essentially Virtual Marilyn with the adopted persona of Marilyn Monroe is a copyright-protected character like Batman, Superman, Mickey Mouse, and so on.

– The lawsuit mentioned above happened in 2008; the outcome of it was a ruling by two federal judges who sanctioned and fined the Monroe estate and its prominent counsel for deceiving the court regarding the rights to the persona of Marilyn Monroe; apparently the Estate knew they couldn’t have inherited the rights based on the low of domicile where she died (that is, she died in New York—hence, the problem).

– Virtual Marilyn will be launched in live concert which will be webcast across the globe. It’s currently in development for the end of 2012 or the beginning of 2013. Furthermore, they’re partnering with two non-profit charities to whom will go 70% of the net proceeds.

I still kind of think bringing celebs back from the dead to perform in holographic form is weird—even if that celeb has since become a character—but again, that’s just me. Thoughts?

Lucia Peters is BettyConfidential’s associate editor.

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