Shaw Family Archives v. CMG Worldwide: You Cannot Will a Right That Did Not Exist

The court held Marilyn Monroe could not devise a post-mortem publicity right through her will because no such right existed at her 1962 death.

By Lidiia Levitska  ·  July 11, 2026
A vintage black and white glamour photograph portrait on a studio wall
Shaw Family Archives held that Marilyn Monroe's estate could not inherit a publicity right the law had not yet created in 1962. 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.

In Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 (S.D.N.Y. 2007), the United States District Court for the Southern District of New York decided a question that sounds abstract until an eight-figure licensing program depends on it: can a person bequeath a property right that did not exist when she died? Marilyn Monroe died on August 5, 1962. Her will left the residue of her estate to several beneficiaries, and decades later the successors to that residuary interest, organized as Marilyn Monroe LLC, claimed to own her right of publicity and to control every commercial use of her name and image. When the Shaw family, whose photographer patriarch had taken famous pictures of Monroe, began licensing those images, litigation followed on both coasts. Judge Colleen McMahon, ruling on the New York action, held that Monroe could not have passed a post-mortem right of publicity through her will because no such right existed at her death under any law that could plausibly govern her estate. The residuary clause had nothing to convey.

At a glance

  • Case: Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 (S.D.N.Y. 2007) (Docket No. 05 Civ. 3939 (CM)).
  • Decided: May 2, 2007, by Judge Colleen McMahon, on cross-motions for summary judgment.
  • Holding: Because neither California nor New York recognized a descendible post-mortem right of publicity when Monroe died in 1962, she owned no such right to devise, and her will’s residuary clause could not transfer one to the successors who became Marilyn Monroe LLC.
  • Significance: A leading statement of the testamentary-timing rule for publicity rights, and the decision that provoked California’s retroactive 2007 amendment to Civil Code section 3344.1.

The descendibility problem the case inherited

The right of publicity protects the commercial value of a person’s identity: name, likeness, voice, and other indicia. For living people its existence is uncontroversial. The hard questions arrive at death. Does the right survive the person, so that an estate or assignee can keep licensing the identity, or does it expire with the individual? States answer differently. Some recognize a robust descendible right by statute; others recognize none after death; and the timing of when a state first created a post-mortem right turns out to matter enormously.

Monroe’s estate stood at the intersection of these variations. By the 2000s both California and Indiana (where CMG Worldwide, the estate’s licensing agent, operated) had statutes recognizing post-mortem publicity rights. Indiana’s statute is among the broadest in the country. The estate’s theory was that these modern statutes supplied the right, and that Monroe’s will had transferred it to her residuary beneficiaries, whose interest MMLLC now held. The Shaw plaintiffs countered that whatever a 2007 statute said, the only question that mattered was what Monroe owned in 1962.

Why the residuary clause conveyed nothing

Judge McMahon accepted the plaintiffs’ framing, and it is the doctrinal heart of the case. A will operates on the testator’s property as it exists at death. A person cannot devise what she does not own, and she cannot own a legal right the law has not yet brought into being. When Monroe died in 1962, no jurisdiction that could conceivably govern her estate recognized a descendible post-mortem right of publicity. California would not create a statutory post-mortem right until 1984 (former Civil Code section 990, later renumbered section 3344.1). New York recognized no post-mortem right of publicity at all when Shaw was decided, and its later statute did not change the answer for Monroe: New York finally created a post-mortem right in Civil Rights Law section 50-f, effective May 29, 2021, but only for personalities who died on or after that date and were domiciled in New York at death. Indiana’s statute came far later than California’s as well, in 1994.

It followed that in 1962 there was no post-mortem publicity right in Monroe’s estate for the residuary clause to capture. The later enactment of publicity statutes could create rights going forward, but a statute passed in 1984 or 2007 could not retroactively place a property right into the hands of a testator who had already died in 1962 and then be treated as having passed through her decades-old will. The right, if it existed at all now, had been created by legislation long after the will took effect, and a will speaks only as of the moment of death. The court therefore held that MMLLC did not own Monroe’s right of publicity by devise.

Domicile, and the trap the estate had set for itself

Which state’s law governed was itself contested, and here the estate faced a bind of its own making. A decedent’s domicile at death ordinarily determines the law applicable to the disposition of intangible personal property. For estate-tax and probate purposes, Monroe’s representatives had long taken the position that she was domiciled in New York when she died, an advantageous posture at the time. But New York recognizes no post-mortem right of publicity. To capture the benefit of California’s or Indiana’s statutes, the estate needed Monroe to have been a California domiciliary. It could not comfortably claim both.

That inconsistency ripened into a decisive holding in the parallel California litigation. In Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), the Ninth Circuit applied judicial estoppel: having represented for decades that Monroe died a New York domiciliary, the estate could not now assert California domicile to claim a California post-mortem right. Under New York law there was no descendible right, and so, consistent with the New York court’s reasoning in Shaw, Marilyn Monroe LLC owned no right of publicity in Monroe’s identity. The images were, in the relevant sense, free.

The legislative backlash

The Shaw decision did not sit quietly. Within months, California amended Civil Code section 3344.1 in 2007 to state expressly that the post-mortem right of publicity is a freely transferable property right that exists and existed at the moment of death of any deceased personality who died before January 1, 1985, and that it can be transferred by the residuary clause of a will, including wills executed before the statute. The amendment was a direct response to the reasoning that a residuary clause cannot pass a right that did not yet exist. It attempted, in effect, to retroactively vest and then devise the right.

The maneuver ultimately did not rescue Monroe’s estate, because the estate’s own domicile representations kept it out of California law’s reach. But the amendment reshaped the landscape for other estates whose decedents were genuinely California domiciliaries. It stands as a vivid example of a legislature answering a court’s statutory-timing logic by rewriting the timing. The episode illustrates that in publicity law the boundary between judicial doctrine and legislative correction is unusually porous, because so much of the field is statutory and state-specific.

Open questions

  • How far can retroactive vesting go? California’s 2007 amendment purported to create and devise a right at a death that preceded the statute by decades. Its constitutional limits, and whether other states can or will follow, remain contested terrain.
  • What resolves conflicting domicile positions? Shaw and Milton Greene punished inconsistency, but estates that made no prior representations face an open question about how aggressively courts will scrutinize a claimed domicile chosen for publicity advantage.
  • Has New York changed its answer? Partly. Alongside the privacy-based sections 50 and 51 for the living, New York added section 50-f in 2021, a 40-year post-mortem right for deceased performers and personalities. It runs forward only, reaching those who died on or after May 29, 2021, so it leaves decedents like Monroe exactly where Shaw left them. Whether any state will extend such a right backward, and whether that would survive review, remains contested.

Implications for creators and businesses

  • A will transfers only what the testator owned at death. Estate plans cannot assume that future statutes will retroactively create and pass rights the decedent never held. Draft and license against the law in force at death.
  • Domicile at death is a strategic fact, not an afterthought. The state where a person is domiciled when she dies can determine whether a post-mortem publicity right exists at all. Positions taken for tax or probate purposes can foreclose later publicity claims.
  • Diligence before licensing an icon. A licensee should verify the chain of title to a deceased celebrity’s identity, including the decedent’s date and place of death and the governing statute, before paying for rights that may not exist.
  • Watch the statute, not just the case law. Publicity law shifts by legislation as much as by opinion. A holding can be answered by an amendment within a year, so both the reported decision and any responsive statute must be checked.

Frequently asked questions

Why did Marilyn Monroe’s estate lose control of her publicity rights? Because a person can only devise property she owns at death. When Monroe died in 1962, neither New York nor California recognized a descendible post-mortem right of publicity, so there was no such right for her will’s residuary clause to pass. Marilyn Monroe LLC therefore never acquired it.

Did later statutes fix the problem for the estate? California amended Civil Code section 3344.1 in 2007 to make the post-mortem right descendible retroactively, even by the wills of people who died before the statute existed. But that did not save the estate, because courts later held Monroe was domiciled in New York at death, and New York recognized no post-mortem publicity right for someone who died in 1962. New York created one in 2021, in Civil Rights Law section 50-f, but only for personalities who died on or after May 29, 2021.

What is the practical lesson for celebrity estate planning? A will can only transfer rights that exist under the applicable law at the moment of death. Domicile at death decides which state’s law applies, and estates should not assume that later legislation, or a favorable domicile they never actually established, will retroactively hand them rights the decedent never owned.

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Lidiia Levitska
About the Author

Lidiia Levitska

International Intellectual Property Attorney

Lidiia Levitska focuses on intellectual property dispute resolution, policy, and advisory work across international institutions and government bodies. From 2021 to 2025 she served at the World Intellectual Property Organization (WIPO), managing arbitration cases and overseeing compliance with the Uniform Domain-Name Dispute-Resolution Policy (UDRP), and earlier led IP policy research as a Senior Policy Officer at the American Chamber of Commerce in Ukraine. She holds an LL.M. in International Intellectual Property Law from Chicago-Kent College of Law and an M.A. in Information Technology Law from the University of Tartu, and was admitted to the Ukrainian Bar in 2019.

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