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2 October 2014Copyright

‘Virtual Marilyn’ files lawsuit against Marilyn Monroe Estate

A company which has produced a virtual representation of film star Marilyn Monroe has taken the actress’s estate to court to argue that it is free to portray her.

Virtual Marilyn LLC is seeking declaratory relief that it has the right to portray the character and that her statutory heir, the Marilyn Monroe Estate, is unlawfully preventing it from doing so.

In a lawsuit filed at a New York district court, Virtual Marilyn says it holds copyright registrations encompassing "audio-visual work and character artwork depicting a computer-generated virtual actress adopting the persona of Marilyn Monroe”.

In the lawsuit, Virtual Marilyn claimed Monroe's estate had said that the "use of Marilyn Monroe's identity and persona” without its permission would amount to unfair competition and false designation of origin.

According to the Hollywood Reporter news website, the Monroe estate had previously threatened the virtual character’s owner.

In 2012, it sent a series of legal letters to the organisation following speculation that Virtual Marilyn would be taken on the road to sing and interact with live music stars.

But since then the estate has been hit by a ruling at the US Court of Appeals for the Ninth Circuit, which said that it could not claim that the actress was living in California at the time of her death.

Instead, she was domiciled in New York, which, unlike California, does not allow the granting of post-mortem publicity rights.

In its request for declaratory relief, Virtual Marilyn cites both the Ninth Circuit decision and the US Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film Corp, a 2003 ruling which concluded that an item is allowed to be copied once it falls into the public domain.

The Monroe case is reminiscent of recent patent infringement claims involving a hologram of singer Michael Jackson and cartoon character Homer Simpson.

In both cases, Alki David, owner of Hologram USA, said the appearance of the hologram infringed his company’s patented technology for projecting 3D images on stage.

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