FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MILTON H. GREENE ARCHIVES, INC., 

Plaintiff-Appellee,

v.

MARILYN MONROE LLC, a

Delaware Limited Liability No. 08-56471

Company; ANNA STRASBERG, an D.C. No.  individual, 2:05-cv-02200-

Defendants-Appellants, MMM-E

and

CMG WORLDWIDE INC., an Indiana

Corporation,

Defendants. 

MILTON H. GREENE ARCHIVES, INC., 

Plaintiff-Appellee,

v.

CMG WORLDWIDE INC., an Indiana

Corporation, No. 08-56472

Defendant-Appellant, D.C. No. 

and 2:05-cv-02200-

MMM-E MARILYN MONROE LLC, a

Delaware Limited Liability

Company; ANNA STRASBERG, an

individual,

Defendants. 

10207
THE MILTON H. GREENE ARCHIVES, 

INC.,

Plaintiff-counter-defendantAppellant,

TOM KELLEY STUDIOS, INC.,

Defendant-counter-plaintiff- No. 08-56552

Appellant, D.C. No.

v.  2:05-cv-02200-

MMM-E CMG WORLDWIDE INC., an Indiana

Corporation; MARILYN MONROE OPINION

LLC, a Delaware Limited Liability

Company; ANNA STRASBERG, an

individual,

Defendants-counter-plaintiffsAppellees. 

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

October 13, 2011—Pasadena, California

Filed August 30, 2012

Before: Alfred T. Goodwin and Kim McLane Wardlaw,

Circuit Judges, and William K. Sessions III,

District Judge.*

Opinion by Judge Wardlaw

*The Honorable William K. Sessions III, District Judge, United States

District Court for Vermont, sitting by designation. 

10208 GREENE ARCHIVES v. MARILYN MONROE
COUNSEL

Douglas E. Mirell, Laura A. Wytsma and Benjamin R. King,

Loeb & Loeb LLP, Los Angeles, California for appellants and

cross-appellees Anna Strasberg and Marilyn Monroe LLC.

Theodore J. Minch, Sovich Minch LLP, McCordsville, Indiana, and William Weinberger, Parker, Milliken, Clark,

O’Hara & Samuelian, Los Angeles, California for appellant

and cross-appellee, CMG Worldwide, Inc.

Surjit P. Soni, Leo E. Lundberg, Jr. and M. Danton Richardson, The Soni Law Firm, Pasadena, California for appellees

and cross-appellants The Milton Green Archives, Inc. and

Tom Kelley Studios, Inc.

OPINION

WARDLAW, Circuit Judge:

An enduring American celebrity, Marilyn Monroe continues to inspire both admiration and litigation a half-century

after her death.1 At issue is whether appellants inherited a

1

Just within the past year, Monroe was the subject of both a major

motion picture, My Week with Marilyn, and a network television series,

Smash. Numerous books tell and retell her life story and hypothesize about

her death. Several new books were released to coincide with the fiftieth

anniversary of her death, and a Westlaw search yields 153 articles about

Monroe that were published on the day of the anniversary of her death.

Hip hop artist Nicki Minaj sings about her. See Nicki Minaj, Marilyn

Monroe, on Pink Friday: Roman Reloaded (Universal Republic Records

2012). Plans have been announced for Monroe-themed cafes and nail

salons. See Maureen Dowd, The Love Goddess Who Keeps Right on

Seducing, N.Y. Times, Aug. 5, 2012. And in the wake of deceased rapper

Tupac’s recent performance at the Coachella Valley Music and Arts Festival, there are even plans to resurrect Monroe as a holographic “performer,

spokesperson, cultural pundit and computer avatar.” Eriq Gardner, Holograms: A New Dangerous Frontier, The Hollywood Reporter, June 8,

2012. 

GREENE ARCHIVES v. MARILYN MONROE 10211
right of publicity, which was created and deemed posthumous

by the states of California and Indiana decades after her death,

through a residual clause in her Last Will and Testament. The

will was subject to probate in the state of New York, which

does not recognize a posthumous right of publicity. The issue

of appellants’ rights turns on whether Monroe was domiciled

in California or New York at the time of her death. We conclude that because Monroe’s executors consistently represented during the probate proceedings and elsewhere that she

was domiciled in New York at her death to avoid payment of

California estate taxes, among other things, appellants are

judicially estopped from asserting California’s posthumous

right of publicity. We therefore affirm the district court’s

order so holding.2

I.

Following her divorce from Arthur Miller, while in New

York City, Marilyn Monroe executed her Last Will and Testament on January 14, 1961. She named New York attorney

Aaron Frosch executor. She then traveled to California in the

spring of 1961, where she first stayed in a hotel, then moved

to a rental apartment, and again moved into a home in Brentwood which she purchased in 1962. In April 1962, Monroe

began filming Something’s Got to Give on the 20th Century

Fox Studios lot in Los Angeles. Fox fired her during filming

in June for repeated absences and tardiness. Monroe was

found dead in her Brentwood home on August 5, 1962. She

maintained her New York apartment and staff throughout this

period.

2The district court issued a number of orders, culminating in its July 31,

2008, order granting summary judgment in favor of Milton Greene. See

Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., 568 F. Supp.

2d 1152 (C.D. Cal. 2008). 

10212 GREENE ARCHIVES v. MARILYN MONROE
A.

Consistent with New York law, the New York Surrogate’s

Court admitted Monroe’s will to probate on October 30, 1962.

Frosch, who drafted the will, served as the executor of the

estate from that time until his death in 1989. The will sets

forth several bequests, but does not explicitly address the right

of publicity asserted here. Assuming that such a right existed,

it could pass, if at all, through only the will’s residual clause,

which distributed the “rest, residue and remainder” of Monroe’s estate as follows:

(a) To MAY REIS the sum of $40,000.00 or 25%

of the total remainder of my estate, whichever

shall be the lesser.

(b) To DR. MARIANNE KRIS 25% of the balance

thereof, to be used by her as set forth in ARTICLE FIFTH (d) of this my Last Will and Testament.

(c) To LEE STRASBERG the entire remaining

balance.

May Reis, Monroe’s private secretary, inherited the sum of

$40,000 because the residual estate was “significantly greater

than $160,000.” The estate distributed 25% of the remainder

to Dr. Marianne Kris, Monroe’s psychiatrist, “for the furtherance of the work of such psychiatric institutions or groups as

she shall elect.” Kris passed away in 1980, bequeathing her

interest in the Monroe estate to the Hampstead Child-Therapy

Clinic of London, England (now the Anna Freud Center for

the Psychoanalytic Study and Treatment of Children). Frosch

apportioned 75% of the remainder of the estate to Lee Strasberg, Monroe’s acting coach and close friend. Lee Strasberg

died testate in 1982, leaving his share of Monroe’s estate to

his wife, Anna Strasberg. Following Frosch’s death in 1989,

the Surrogate’s Court appointed Anna Strasberg executor of

GREENE ARCHIVES v. MARILYN MONROE 10213
the Monroe estate. In 2001, the Surrogate’s Court decreed the

estate settled and authorized the estate to transfer all remaining assets to Marilyn Monroe LLC (“Monroe LLC”), a newlyformed Delaware Limited Liability Company, managed by

Anna Strasberg. Anna Strasberg and the Anna Freud Center

are the only members of Marilyn Monroe LLC, holding 75%

and 25% membership interests, respectively.

B.

During the forty-year probate proceedings, Frosch, in his

capacity as executor of the estate, consistently represented in

numerous judicial and quasi-judicial settings that Monroe was

domiciled in New York when she died.3 In New York, Frosch

(and later Anna Strasberg) represented to the Surrogate’s

Court that Monroe died a domiciliary of New York. In California, Frosch also represented to the California tax authorities that Monroe died a domiciliary of New York. 

Because Monroe owned property in California when she

died, her estate, represented by the California law firm of

Gang, Tyre, Rudin & Brown, initiated ancillary probate proceedings in Los Angeles Superior Court. Frosch successfully

avoided substantial California estate taxes by proving that

Monroe was a domiciliary of New York. On behalf of the

Monroe estate, he sought a “no tax certificate” from the Inheritance Tax Appraiser. The Tax Appraiser required additional

substantiation of Monroe’s New York domicile to accept California counsel’s representation that she died a non-California

resident. On April 24, 1964, Hermione Brown, the estate’s

California counsel, wrote Frosch seeking “information to

counteract the fact that Miss Monroe owned a home and actu3Frosch used the term “residence” in his representations about Monroe’s

domicile. Under California’s inheritance laws, residence and domicile are

synonymous. See Cal. Code Regs. tit. 18, § 13303.4 (formerly Cal. Code

Regs. tit. 18, § 640 (1945)) (“For the purpose of the Inheritance Tax Law

the term ‘residence’ is synonymous with legal residence or domicile.”). 

10214 GREENE ARCHIVES v. MARILYN MONROE
ally was living in California at the time of her death, and that

her mother is physically in California.” Brown further advised

Frosch that it was important that he answer all the questions

in the “Affidavit Concerning Residence,” and “in doing so

build as strong a case as possible.”

Frosch provided Brown with a completed Affidavit Concerning Residence, and supporting affidavits from four Monroe intimates. Brown, in turn, sent the affidavits to the

Inheritance Tax Appraiser, representing that “Miss Monroe

was a non-resident of the State of California at the time of her

death” in a letter dated March 4, 1966. In the Affidavit Concerning Residence, Frosch represented that Monroe filed her

last income tax return in New York City, New York in April

1962, and that she purchased her home “in Los Angeles to

live at while engaged in performing services in a motion picture film.” To the next question, which asked where she was

“actually living at the time of her death,” Frosch declared that

Monroe was “[r]esiding temporarily in Los Angeles while

performing as aforesaid,” and that she “had a fully furnished

apartment in New York City, which was her permanent residence.” Frosch explained that Monroe resided “temporarily in

California performing services as a motion picture actress . . .

for approximately six months prior to death.” In response to

a question about Monroe’s business interests outside of California, Frosch attested that she was “[a]ctive as principal, sole

shareholder and officer and director in Marilyn Monroe Productions, Inc., A New York Corporation with offices in New

York City.”

In response to questions about any statements or acts by

Monroe indicating her intended residence, Frosch elaborated

that Monroe’s actions before her death showed that she

intended to remain a resident of New York. He represented

that Monroe: “in all respects retained her New York Residence. Said residence was not sublet. It remained fully furnished and contained Decedent’s personal effects, clothing,

and substantially all of its contents. Furthermore Decedent’s

GREENE ARCHIVES v. MARILYN MONROE 10215
maid continued to look after and maintain said residence.”

Finally, Frosch represented that on a number of occasions,

Monroe told Ralph L. Roberts and May Reis that she “was

returning to New York after completing [her] motion picture

commitment — that she considered N.Y. her residence.”

Frosch attached affidavits from Ralph L. Roberts, Hattie

Amos, May Reis and Patricia Newcomb recounting statements by Monroe that indicated her intent to remain a New

York resident.

In Roberts’s affidavit, he attested that he and Monroe had

been “close personal friends” since 1955, and that from April

1962 “until her death, [he] spoke to her on an average of at

least once each day and had personal meetings with her on an

average of at least three times a week.”

4

 According to Roberts, Monroe purchased the Brentwood home

primarily for the reason that she disliked living in

hotels and preferred both the comfort and privacy of

a private home. She indicated that her California

house would be used only on such occasions when

she was in California performing in a motion picture

film or otherwise engaged in similar activities.

He explained that in several conversations shortly before her

death, Monroe “specifically told [him] that she intended

vacating her California house and was going to return to her

New York apartment which she considered her permanent

home and residence and to reside permanently thereat.”

The Hattie Amos affidavit identified her as Monroe’s personal housekeeper for four years before her death. Amos

declared that Monroe instructed her “to be at her said New

4Although his affidavit does not so state, Roberts is widely reported to

have been Monroe’s personal masseur, close friend and confidant. See

Lois Banner, Marilyn: The Passion and the Paradox 57 (2012); Keith

Badman, Marilyn: The Final Years 157 (2012). 

10216 GREENE ARCHIVES v. MARILYN MONROE
York City apartment every day while she was temporarily

away, and to clean said apartment and perform all of the same

functions that [Amos] had been performing while she had

been in residence thereat.” Monroe told Amos “on several

occasions that she considered her said New York apartment

as her permanent residence and told [Amos] that her said New

York apartment was her permanent home.” Amos knew “for

a fact that [Monroe] intended returning to her permanent residence in New York.” She recounted that, approximately two

days before Monroe’s death, Monroe requested that Amos

“proceed to her California house to stay with her for approximately one month and then . . . return back to New York with

decedent.”

Reis, Monroe’s private secretary from 1958 to 1961 and a

beneficiary of her will, declared that:

When decedent was required to leave New York for

the purpose of appearing in a motion picture film, it

was generally her practice and custom to temporarily

depart from her New York apartment approximately

two to three weeks prior to the commencement of

the motion picture film. . . . Generally she would

remain away from her New York residence until

after the completion of the film and any consultations thereafter required. She would then return to

her permanent residence in New York.

It was always Reis’s understanding that “subsequent to decedent’s divorce and while [Reis] was employed by decedent,

she considered her said New York apartment as her official

and permanent residence.”

Patricia Newcomb, a close personal friend who served as

Monroe’s Public Relations Counsel, attested that Monroe usually stayed in hotels while in California making films. Monroe

“advised [Newcomb] at the time she purchased the [Brentwood house], that she acquired same solely for the reason that

GREENE ARCHIVES v. MARILYN MONROE 10217
she disliked living in hotels, and that she desired and preferred the privacy of living in a private home, even though it

was a temporary residence.” Newcomb further stated that

Monroe “had no intention of making her permanent residence

in her said California house, but intended leaving California

and returning to her New York residence upon the completion

of her assignment in [Something’s Got to Give].” Newcomb

explained that “[a]t the time of her death, [Monroe] was still

living in California because the said film had not as yet been

completed, and she was awaiting resolution of certain controversies relating thereto.” Monroe told Newcomb “that she

intended to return to her New York residence for the reasons,

among others, that her closest personal friends resided in New

York, and that she wished to continue her permanent activities

at the Actors Studio, which activities she considered most

important to her, and with which project she was closely affiliated with her close personal friends, Mr. and Mrs. Lee Strasberg.”

On April 5, 1967, the Inheritance Tax Appraiser reported

to the Los Angeles County Superior Court that Monroe had

died a resident of the County of New York, State of New

York. Although this conclusion exempted substantially all of

Monroe’s assets from California taxes, a small portion of her

estate remained taxable under California law. The estate paid

a total of $777.63 in California inheritance taxes.

Monroe’s estate also received a stream of royalties from

profit participation agreements for motion pictures in which

Monroe had appeared. See Milton H. Greene, 568 F. Supp. 2d

at 1186-88. This income in California led to additional assertions by the estate, separate and apart from those made in the

probate proceedings, that Monroe died a domiciliary of New

York. In 1971, the California Franchise Tax Board found that

the estate owed income taxes on a portion of Monroe’s profit

participation for the films Some Like It Hot and The Misfits.

Frosch paid income taxes for the estate on the participation

income in New York, but took the position with the Franchise

10218 GREENE ARCHIVES v. MARILYN MONROE
Tax Board that no California income tax was owed because

the estate was a resident of New York, not California. Frosch

appealed the tax decision to the California State Board of

Equalization, which, on April 22, 1975, found the estate liable

for $51,243 in past due California income taxes and $12,810

in penalties. The Board also concluded that, because Monroe

and the estate were residents of New York, the estate was not

entitled to any credit for taxes paid in New York.

Until recently, Anna Strasberg also represented in judicial

proceedings on behalf of the estate that Marilyn Monroe died

domiciled in New York. For example, in 1992, Nancy Miracle

sued Anna Strasberg as the executor of the Monroe estate in

the federal district court for the District of Hawaii, claiming

that she was Monroe’s biological child and seeking 50% of

the Monroe estate as a pretermitted heir under California law.5

 Strasberg moved to dismiss the complaint for failure to state

a claim and for lack of personal jurisdiction, arguing that New

York law applied because “the decedent’s domicile at the

time of death determines what law will be applied,” and that

it was undisputed that Monroe “was a New York domiciliary

at the time of her death.” Agreeing with Strasberg, the district

court determined that New York, and not California, law

applied to Miracle’s pretermitted heir claims. This distinction

was “critical” because “under the California law in effect at

Monroe’s death, pretermitted children could bring claims

even if [, like Miracle,] they were born prior to execution of

a will, while under the relevant New York law, claims could

be brought only by ‘after-born children.’ ” Because New York

law applied, the district court held that Miracle failed to state

5A pretermitted heir is a child or spouse omitted from a will, most commonly when the marriage or birth of the child postdates the execution of

the will. See Black’s Law Dictionary 792 (9th ed. 1999). Many states provide that, unless intentionally omitted, a pretermitted heir receives the

share of the estate they would have received if the testator had died intestate. See, e.g., Cal. Prob. Code §§ 21620-23; N.Y. Est. Powers & Trusts

Law § 5-3.2. 

GREENE ARCHIVES v. MARILYN MONROE 10219
a claim.6

 In 2002, Miracle petitioned the New York Surrogate’s Court to reopen and vacate its orders in the probate of

the Monroe estate. Strasberg, on behalf of the estate, argued

that the claims were foreclosed under New York law and that

the Hawaii court’s decision to apply New York law precluded

Miracle’s claims under the doctrine of res judicata. The Surrogate’s Court ultimately applied New York law and dismissed

the petition on the merits.

C.

In March 2005, Marilyn Monroe LLC and its licensee,

CMG Worldwide, Inc., sued Milton Greene Archives, Inc.

and Tom Kelley Studios, Inc. (collectively, “Milton Greene”)7

in the federal district court for the Southern District of Indiana, claiming ownership of Marilyn Monroe’s right of publicity and alleging that Milton Greene was violating Monroe

LLC’s rights by using Monroe’s image and likeness for unauthorized commercial purposes, including the advertising and

sale of photographs of Monroe. Shortly thereafter, Milton

Greene sued CMG Worldwide, Monroe LLC and Anna Strasberg in the federal district court for the Central District of

California, seeking a declaration that Monroe LLC does not

own Monroe’s right of publicity. Although Anna Strasberg is

named as a defendant in her personal capacity, she does not

assert that she owns Monroe’s right of publicity other than

through her interest in Monroe LLC. The Indiana cases were

transferred to the Central District of California and consolidated with the California cases. In addition to the dueling

6The Hawaii district court dismissed the case both for failure to state a

claim and for lack of personal jurisdiction. A district court may decide that

a complaint fails to state a claim even when it does not have personal

jurisdiction. See Wages v. I.R.S., 915 F.2d 1230, 1234-35 (9th Cir. 1990)

(discussing a court’s authority to address alternate bases for dismissal

when it finds a lack of personal jurisdiction, as opposed to when it finds

a lack of subject matter jurisdiction). 

7Milton Greene and Tom Kelley were well known photographers whose

bodies of work include collections of Monroe photographs. 

10220 GREENE ARCHIVES v. MARILYN MONROE
declaratory relief claims about Monroe’s right of publicity,

each of the complaints asserted numerous other claims,

including business torts and violations of the Copyright and

Lanham Acts. In the course of the litigation, the parties dismissed all claims other than those alleging violations of Monroe’s right of publicity and those seeking declaratory relief

regarding Monroe LLC’s claim to own that right.8

On May 14, 2007, the district court granted summary judgment in favor of Milton Greene, holding that Monroe LLC did

not own Monroe’s right of publicity. The court concluded

that, at the time of Monroe’s death in 1962, the states of New

York, California and Indiana did not recognize “a descendable, posthumous right of publicity.” Acknowledging that

“California created a descendable, posthumous right of publicity in 1984, with the passage of its post-mortem right of

publicity statute,”

9

 the district court held that as of 1962,

applying either New York or California law, no right of publicity could have passed through Monroe’s will, reasoning

that Monroe “had no testamentary capacity to devise, through

the residual clause of her will, statutory rights of publicity that

were not created until decades after her death.” The district

court granted summary judgment in favor of Milton Greene,

8We deny Milton Greene’s request to take judicial notice of appeals

pending in the Second Circuit in cases related to Shaw Family Archives,

Ltd. v. CMG Worldwide, Inc., 589 F. Supp. 2d 331 (S.D.N.Y. 2008).

Although those cases also involve claims about the ownership of Marilyn

Monroe’s right of publicity, the issues on appeal bear no relation to the

claims at issue here. See Fed. R. Evid. 201; United States ex rel. Robinson

Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.

1992) (“[W]e may take notice of proceedings in other courts, both within

and without the federal judicial system, if those proceedings have a direct

relation to matters at issue.”) (quotation marks omitted). 

9Before the passage of Civil Code § 3344.1, which created the posthumous right of publicity, California courts had held that a celebrity’s right

of publicity terminated upon the individual’s death. See Lugosi v. Universal Pictures, 25 Cal. 3d 813 (1979). As enacted in 1984, Civil Code

§ 3344.1 did not address whether it was intended to have retroactive

effect. 

GREENE ARCHIVES v. MARILYN MONROE 10221
concluding that, because Monroe LLC was not entitled to

exercise Monroe’s posthumous right of publicity, it lacked

standing to assert those rights against Milton Greene.

On June 28, 2007, in direct response to the district court’s

grant of summary judgment, California State Senator Sheila

Kuehl introduced Senate Bill 771 (“SB 771”), which, when

enacted in early September 2007, amended California Civil

Code § 3344.1.10 The bill states:

It is the intent of the Legislature to abrogate the summary judgment orders entered in The Milton H.

Greene Archives, Inc. v. CMG Worldwide, Inc.,

United States District Court, Central District of California, Case No. CV 05-2200 MMM (MCx), filed

May 14, 2007, and in Shaw Family Archives Ltd. v.

CMG Worldwide, Inc., United States District Court,

Southern District of New York, Case No. 05 Civ.

3939 (CM), dated May 2, 2007.11

SB 771 amended Civil Code § 3344.1 to provide that the California statutory right of publicity is deemed to have existed at

the time of death of any deceased personality who died before

January 1, 1985; is a property right, freely transferable and

descendible; and, in the absence of an express testamentary

transfer, could pass through the residual clause in the will of

the deceased personality.

10In her formative years, Senator Kuehl was a child actor, best known

for her role as Zelda Gilroy in the television series The Many Loves of

Dobie Gillis. Kuehl originally introduced SB 771 on February 23, 2007 as

a stem cell research law, but then revised it in June to make it an amendment to Civil Code § 3344.1. 

11In Shaw Family Archives, the district court for the Southern District

of New York held, like the district court here, that before the 2007 amendment, Civil Code § 3344.1 did not retroactively allow deceased personalities like Monroe to transfer the statutory right of publicity through a will.

486 F. Supp. 2d at 319-20. Briefing in the appeal from that decision to the

Second Circuit was stayed pending the outcome of this appeal. 

10222 GREENE ARCHIVES v. MARILYN MONROE
Based on the passage of SB 771, Monroe LLC sought

reconsideration of the district court’s grant of summary judgment for Milton Greene. Granting the motion for reconsideration, the district court held that SB 771 applied retroactively

and that Civil Code § 3344.1, as amended, permitted Monroe’s right of publicity to pass to Monroe LLC through the

residual clause of her will, if California’s substantive right of

publicity law applied. Unlike the California legislature, the

New York legislature had rejected Monroe LLC’s efforts to

amend its laws to enact a similar descendible, posthumous

right of publicity. Therefore, if New York law applied—

which it would if Monroe was domiciled in New York at the

time of her death—Monroe’s right of publicity would have

been extinguished at her death. Addressing the questions of

domicile and choice of law, the district court again granted

summary judgment to Milton Greene, reasoning that principles of judicial estoppel precluded Monroe LLC from advocating that Monroe was domiciled in California when she

died.

II.

We review a district court’s order granting summary judgment de novo. See Bamonte v. City of Mesa, 598 F.3d 1217,

1220 (9th Cir. 2010). We view the evidence in the light most

favorable to the nonmoving party on each issue and determine

whether the district court correctly applied the relevant substantive law. Id. We also review a district court’s interpretation of a statute de novo. Beeman v. TDI Managed Care

Servs., Inc., 449 F.3d 1035, 1038 (9th Cir. 2006). We may

affirm a district court’s judgment on any basis supported by

the record. Id.

Federal law governs the application of judicial estoppel in

federal courts, and a district court’s application of judicial

estoppel is reviewed for abuse of discretion. Johnson v. Oregon, 141 F.3d 1361, 1364 (9th Cir. 1998). We apply a twopart test to determine whether a district court has abused its

GREENE ARCHIVES v. MARILYN MONROE 10223
discretion. See Associated Press v. Otter, 682 F.3d 821, 824

(9th Cir. 2012). First, we determine de novo whether the trial

court identified the correct legal rule to apply to the relief

requested. Id. If the trial court identified the correct legal rule,

we then evaluate whether the trial court’s application of the

correct legal standard was (1) “illogical,” (2) “implausible,”

or (3) “without support in inferences that may be drawn from

the facts in the record.” Id. (quotation marks omitted).

III.

[1] Monroe LLC now asserts that Monroe died domiciled

in California, not New York, and contends that the district

court improperly extended the doctrine of judicial estoppel to

preclude litigation of the question of Monroe’s domicile at

death.12 “[J]udicial estoppel, ‘generally prevents a party from

12CMG Worldwide separately appeals the district court’s grant of summary judgment on its Indiana state law claims. It asserts that Indiana’s

1994 Right of Publicity Act, Ind. Code §§ 32-36-1-1 to -20, posthumously

vested Monroe’s estate and, hence, Monroe LLC with Monroe’s right of

publicity. Indiana choice-of-law rules dictate that in resolving these state

law claims we must apply the law of Monroe’s domicile, New York, as

controlling on all substantive matters related to the estate and disposition

of property. See Maurice F. Jones Trust v. Barnett Banks Trust Co., 637

N.E.2d 1301, 1304 (Ind. App. 1994) (citing Lovett v. Lovett, 155 N.E. 528,

530 (Ind. App. 1927)). In New York, a will can dispose only of property

owned at the time of death. See In re Van Winkle’s Will, 86 N.Y.S. 2d 597,

600 (N.Y. Sur. 1949) (“Of course, under no circumstances, in the absence

of a valid power, can any amount of testamentary intent produce the effect

of subjecting property not owned by a testator at the date of his death to

any disposition whatever.”). Because no descendible right of publicity

existed in New York in 1962, Monroe’s right of publicity was extinguished at her death, and did not become a part of her estate. Therefore,

the district court correctly granted summary judgment in favor of Milton

Greene on the Indiana state law claims. Because we hold that Monroe

LLC is judicially estopped from asserting that Monroe died a domiciliary

of California, we need not, and do not, address the various other rulings

sought by the parties on the validity, meaning, scope and constitutionality

of California’s and Indiana’s right of publicity laws. Cf. Ashwander v.

Tenn. Valley Auth., 297 U.S. 288, 341-49 (1936) (Brandeis, J., concurring). 

10224 GREENE ARCHIVES v. MARILYN MONROE
prevailing in one phase of a case on an argument and then

relying on a contradictory argument to prevail in another

phase.’ ” New Hampshire v. Maine, 532 U.S. 742, 749 (2001)

(quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000)).

It is an equitable doctrine invoked “not only to prevent a party

from gaining an advantage by taking inconsistent positions,

but also because of ‘general considerations of the orderly

administration of justice and regard for the dignity of judicial

proceedings,’ and to ‘protect against a litigant playing fast and

loose with the courts.’ ” Hamilton v. State Farm Fire & Cas.

Co., 270 F.3d 778, 782 (9th Cir. 2001) (quoting Russell v.

Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)) (alteration omitted). Some commentators have suggested, however, that judicial estoppel “is not so much a single doctrine as a set of

doctrines that have not matured into a fully coherent theory.”

18B Wright & Miller, Fed. Prac. & Proc. Juris. § 4477 (2d

ed. 2012).13

[2] The Supreme Court has provided little guidance on the

contours of judicial estoppel. It has acknowledged that circumstances where the doctrine may apply “are probably not

reducible to any general formulation.” New Hampshire, 532

U.S. at 750. In New Hampshire, however, the Court identified

three factors that courts should consider in determining

whether the doctrine is applicable in a given case:

First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in

persuading a court to accept that party’s earlier posi13A party can be estopped by statements successfully advanced in both

judicial and administrative proceedings. Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597, 604 (9th Cir. 1996). California inheritance

tax appraisers are appointed by the courts and act in a quasi-judicial capacity. See Greenaway v. Workmen’s Comp. Appeals Bd., 269 Cal. App. 2d

49, 54 (1969). And the California State Board of Equalization “is a constitutional agency that exercises quasi-judicial powers.” EHP Glendale v.

Cnty. of Los Angeles, 193 Cal. App. 4th 262, 274 (2011). 

GREENE ARCHIVES v. MARILYN MONROE 10225
tion, so that judicial acceptance of an inconsistent

position in a later proceeding would create the perception that either the first or the second court was

misled. . . . A third consideration is whether the party

seeking to assert an inconsistent position would

derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

Id. at 750-51 (citations and quotations omitted). In precedent

that predates New Hampshire, we have held that the doctrine

of judicial estoppel applies “when a party’s position is tantamount to a knowing misrepresentation to or even fraud on the

court.” Wyler Summit P’ship v. Turner Broad. Sys., Inc., 235

F.3d 1184, 1190 (9th Cir. 2000) (quoting Johnson, 141 F.3d

at 1369 (quoting Ryan Operations G.P. v. Santiam-Midwest

Lumber Co., 81 F.3d 355, 362-63 (3d Cir. 1996))).

A.

Relying on Wyler Summit, 235 F.3d at 1190, Monroe LLC

contends that we must find “a knowing antecedent misrepresentation by the person or party alleged to be estopped,” and

that the district court erred when it held that Frosch’s nowdisavowed statements about Monroe’s domicile were knowing misrepresentations. It is unclear when Monroe LLC

decided that Frosch’s position was so fraught with error, since

the Monroe estate continued to make the same representations

about Monroe’s domicile as Frosch did well past the latter’s

demise.

In Wyler Summit, we explained that “[i]f a litigant’s current

position is manifestly inconsistent with a prior position such

as to amount to an affront to the court, judicial estoppel may

apply.” Id. (quotation marks omitted). There, the plaintiff was

owed $1.5 million in profit participation payments under a

1958 contract for William Wyler to direct the film Ben Hur.

Id. at 1188-89. The Wyler contract called for $50,000 annual

payments of profit participation proceeds, but in 1995,

10226 GREENE ARCHIVES v. MARILYN MONROE
Wyler’s successor in interest sought to waive the annual payment term and collect the remaining funds in a lump sum. Id.

at 1189. The district court held that “because Mr. Wyler

claimed only $50,000 per year in percentage compensation

when declaring his taxable income to the I.R.S., he was judicially estopped from claiming the right to waive the provision” and collect the remaining balance due to him as a lump

sum. Id. at 1190. We reversed the district court’s ruling

because Wyler’s representations to the I.R.S. about the money

he received each preceding year were accurate; there was no

inconsistency in his positions with the I.R.S. and the district

court, let alone a knowing misrepresentation. Id.

In Johnson, a case cited and relied upon by Wyler Summit,

we explained that, “[i]f incompatible positions are based not

on chicanery, but only on inadvertence or mistake, judicial

estoppel does not apply.” 141 F.3d at 1369. There, we

reversed a magistrate judge’s application of judicial estoppel

against a plaintiff suing for disability discrimination. Id. at

1363-64. Before filing her disability suit, Johnson represented

that she was disabled in applications for benefits from her

insurance company and from the Social Security Administration. Id. at 1364-65. She also wrote a letter to the I.R.S.

explaining her inability to work and that her disabilities

caused her to file her 1992 tax return late. Id. at 1365. The

magistrate judge held that, because of those statements, Johnson was estopped from asserting that she was “capable of performing the essential functions of her job” under the

Americans with Disabilities Act. Id. at 1366. Johnson’s representations to her insurance company and the Social Security

Administration, however, were not actually inconsistent with

the claims in her disability suit, and her statements to the

I.R.S. were made only in the context of seeking leniency for

a late return, and not in a proceeding adjudicating a claim of

disability. Id. at 1370-71. We explained that her representations were evidence to be weighed in evaluating her discrimination claim, but that they were not “so inconsistent that they

amount to an affront to the court.” Id. at 1369.

GREENE ARCHIVES v. MARILYN MONROE 10227
The Supreme Court has instructed that there are no “inflexible prerequisites or an exhaustive formula for determining

the applicability of judicial estoppel.” New Hampshire, 532

U.S. at 751. “[W]here the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or

theory of intervening higher authority, a three-judge panel

should consider itself bound by the later and controlling

authority, and should reject the prior circuit opinion as having

been effectively overruled.” Miller v. Gammie, 335 F.3d 889,

893 (9th Cir. 2003) (en banc). Our decisions in Wyler Summit

and Johnson are largely harmonizable with the Supreme

Court’s in New Hampshire: In Wyler Summit we held that

there was no judicial estoppel because there was no inconsistency at all in the positions asserted; and in Johnson, we held

that a minor inconsistent statement in an ancillary matter was

insufficient to justify application of judicial estoppel.

[3] However, to the extent that we have suggested, as in

Johnson, that a showing of chicanery is an “inflexible prerequisite” to judicial estoppel, Wyler Summit and Johnson are

inconsistent with New Hampshire. In the wake of New Hampshire, we have treated fraud on the court as a factor rather

than as a requisite element of the judicial estoppel analysis.

See Samson v. NAMA Holdings, LLC, 637 F.3d 915, 935 (9th

Cir. 2011). We acknowledge that we have also continued to

describe judicial estoppel as inapplicable “when a party’s

prior position was based on inadvertence or mistake.” United

States v. Ibrahim, 522 F.3d 1003, 1009 (9th Cir. 2008) (quoting Helfand v. Gerson, 105 F.3d 530, 536 (9th Cir. 1997)).

However, in Ibrahim, despite discussing and relying in part

on the lack of chicanery, we nonetheless applied the New

Hampshire test to find against a party asserting judicial estoppel. Id. at 1009-10. We now clarify that chicanery or knowing

misrepresentation by the party to be estopped is a factor to be

considered in the judicial estoppel analysis and not an “inflexible prerequisite” to its application.

Although an antecedent knowing misrepresentation is not

a prerequisite for judicial estoppel, we do not believe that the

10228 GREENE ARCHIVES v. MARILYN MONROE
district court erred in finding such a misrepresentation here.

Monroe LLC itself makes the case that, at a minimum,

Frosch, as the executor of the Monroe estate, made representations and submitted affidavits by others that were “patently

inconsistent with the objective, contemporaneous evidence”

and “riddled with blatant inaccuracies.” Monroe LLC also

contends that the affidavits provided by Frosch were “prepared years after Marilyn’s death for the express purpose of

trying to avoid tax liability at a time when the Monroe Estate

was believed to be insolvent.” Monroe LLC has repeatedly

insinuated that Frosch misrepresented Monroe’s true domicile

to obtain favorable tax assessments, both as to inheritance and

income. 

When and why the fact of Monroe’s domicile at death

changed is unclear. Monroe LLC also suggests that it has

always believed that Monroe died domiciled in California,

and that Frosch was simply mistaken in his belief and representations because he did not have access to some documents

that allegedly contradict the materials and declarations he

relied upon. This assertion by Monroe LLC is dubious, at

best. Frosch had contemporaneous access to people knowledgeable about Monroe’s intentions, including Ralph L. Roberts, her close friend and confidant and reportedly the last

person to see her alive. To the extent that there was any

debate, Frosch represented, with significant evidentiary support, that Monroe’s intention was to remain domiciled in New

York, though she temporarily relocated to California for a

movie shoot. Another possibility, for which we have insufficient evidence, is that Monroe LLC’s present position on

Monroe’s domicile is a knowing misrepresentation, or tantamount to a fraud on the court. In light of this irreconcilable

conflict between diametrically opposed representations about

Monroe’s intended domicile, the district court’s determination

that Frosch intentionally misled the courts is supported by

“inferences that may be drawn from the facts in the record”

and is therefore not an abuse of discretion. See Otter, 682

F.3d at 824.

GREENE ARCHIVES v. MARILYN MONROE 10229
B.

[4] Turning to the New Hampshire factors, we must first

determine whether Monroe LLC has taken clearly inconsistent positions in prior judicial proceedings. Monroe could not

have been domiciled in both California and New York at the

time of her death. See Gaudin v. Remis, 379 F.3d 631, 636

(9th Cir. 2004) (“[S]he may have only one domicile at a

time.”). Until this litigation, in every prior judicial and quasijudicial proceeding, the Monroe entities took the position that

Monroe died domiciled in New York; Monroe LLC now

asserts that Monroe died domiciled in California. These positions are plainly inconsistent. Because judicial estoppel bars

only inconsistent positions taken by the same party in two different matters, the question thus becomes whether the successive executors’ representations on behalf of the estate that

Monroe died a domiciliary of New York are attributable to

Monroe LLC.

We apply other estoppel doctrines, like collateral estoppel,

“not only against actual parties to prior litigation, but also

against a party that is in privity to a party in a previous litigation.” Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216

(9th Cir. 2011). It is well-established that “a non-party may be

bound by a judgment if one of the parties to the earlier suit

is so closely aligned with the non-party’s interests as to be its

virtual representative.” Mother’s Rest., Inc. v. Mama’s Pizza,

Inc., 723 F.2d 1566, 1572 (Fed. Cir. 1983) (collecting cases).

Because the doctrine of judicial estoppel is intended to protect

the courts, we are particularly mindful that the “[i]dentity of

parties is not a mere matter of form, but of substance. Parties

nominally the same may be, in legal effect, different; and parties nominally different may be, in legal effect, the same.”

Chicago, Rock Island & Pac. Ry. Co. v. Schendel, 270 U.S.

611, 620 (1926) (citation omitted).

[5] We have not previously addressed the question of

whether privity lies between an executor and the beneficiaries

10230 GREENE ARCHIVES v. MARILYN MONROE
of an estate. Supreme Court precedent, however, supports the

district court’s conclusion that, particularly under the circumstances presented here, Frosch is the privy of Monroe LLC.

For example, in Schendel, the Supreme Court found privity,

for the purposes of applying res judicata, between a special

administrator for the deceased spouse’s estate and the decedent’s widow, whom the administrator represented in a lawsuit to recover benefits where the widow was not personally

a party. 270 U.S. at 622. The widow was the sole beneficiary

of the action filed by the special administrator, who had statutory authority to represent the estate. Id. at 620. Because the

interests represented by the administrator were substantially

identical to those of the widow, the Court concluded that the

application of equitable principles deemed the administrator

and the widow in privity for res judicata purposes. See id. at

620-22. The Shendel Court also cited with approval older precedent “that a judgment against a trustee for bondholders was

conclusive in a suit involving the same subject-matter,

brought by him in his individual character.” Id. at 621 (citing

Corcoran v. Chesapeake & Ohio Canal Co., 94 U.S. 741, 745

(1876)).

[6] Other circuits have also concluded that privity lies

between the administrator of an estate and the beneficiaries of

that estate. The Second Circuit has held that “[t]he administrator of a decedent’s estate is in privity both with the decedent

and with the decedent’s beneficiaries.” Bender v. City of

Rochester, 765 F.2d 7, 12 (2d Cir. 1985). Similarly, the Seventh Circuit has held that “a trust beneficiary is collaterally

estopped by a previous adjudication for or against a trustee,

so long as the trustee and beneficiary did not have adverse

interests in the conduct of the prior litigation and the trustee

was authorized to prosecute and defend litigation on behalf of

the trust.” Pelfresne v. Vill. of Williams Bay, 865 F.2d 877,

881 (7th Cir. 1989).

[7] Because tax and estate matters are generally governed

by state law, the laws of California and New York are also

GREENE ARCHIVES v. MARILYN MONROE 10231
instructive, if not controlling, here. Courts in both California

and New York have held that the administrator and the beneficiaries of an estate are in privity for estoppel purposes. In

California, it has long been the law that:

A judgment entered in an action in which an administratrix of an estate of a deceased person is a party,

is binding not only upon the administratrix but also

upon the heirs of the deceased person, even though

the heirs have not been made parties to the action.

The rule in this state is that the judgment concludes

not only the adverse party but also all those claiming

under the title he represents.

Luckhardt v. Mooradian, 92 Cal. App. 2d 501, 519 (1949).

See also Spotts v. Hanley, 85 Cal. 155, 167 (1890) (“The

administrator is in privity with and represents both heirs and

creditors, and a judgment in ejectment recovered by or against

an administrator is an estoppel in favor or against the heir and

those claiming under him.”). Similarly, under New York state

law, the executor of a decedent’s estate is a fiduciary of the

estate’s beneficiaries. See Knox v. HSBC Bank, USA, 791

N.Y.S.2d 101, 101 (App. Div. 2005) (“[A]n estate trustee’s

fiduciary duties to estate beneficiaries persist until the affairs

of the estate are finally wound up.”).

The Restatement of Judgments (Second) § 41 (1982),

explains that “[a] person who is not a party to an action but

who is represented by a party is bound by and entitled to the

benefits of a judgment as though he were a party” if the person was represented by the “trustee of an estate or interest of

which the person is a beneficiary.” Similarly “[a] person represented by a party to an action is bound by the judgment

even though the person himself does not have notice of the

action, is not served with process, or is not subject to service

of process.” Id. The exception to the general rule against nonparty preclusion was recently reaffirmed by the Supreme

Court in Taylor v. Sturgell, 553 U.S. 880, 893-95 (2008)

10232 GREENE ARCHIVES v. MARILYN MONROE
(identifying six “established categories” where nonparties are

subject to estoppel). The Sturgell Court expressly noted that

nonparty “preclusion may be justified based on a variety of

pre-existing substantive legal relationships between the person to be bound and a party to the judgment” and when the

nonparty was adequately represented in a prior litigation by

“trustees, guardians, and other fiduciaries.” Id. at 894 (quotations and alterations omitted). 

[8] Here, Frosch and, later, Anna Strasberg represented the

Monroe estate in their capacities as executor. Both Frosch and

Strasberg consistently stated in judicial proceedings, from

1962 to at least 2002, that Monroe died domiciled in New

York, and not California. There is no dispute that Frosch dealt

in a representative and not a personal capacity in his representations to the courts. In the Affidavit Concerning Residence

submitted to the Inheritance Tax Appraiser, Frosch stated that

his “relationship or representative capacity” was as executor

of the Monroe estate. And in the 1971 to 1975 proceedings

before the California Franchise Tax Board and the State

Board of Equalization, Frosch participated as the executor for

the Monroe estate. In those proceedings, as executor, Frosch

acted on behalf of the estate and its beneficiaries to minimize

exposure to California taxes. Monroe LLC, as beneficiary of

the estate, is thus in privity with Frosch. Therefore, the representations made over the years by Frosch are attributable to

Monroe LLC for judicial estoppel purposes.

After she became executor, Strasberg continued to assert

the position that Monroe died domiciled in New York. As a

75% beneficiary of the residual estate, Strasberg’s personal

interests are arguably even more closely aligned with those of

the estate than Frosch’s were. In 1992, Strasberg successfully

defended the Miracle action filed in the District of Hawaii by

representing that Monroe had died domiciled in New York.

By asserting that position while representing the Monroe

estate, she obtained the benefit of New York law to avoid

Miracle’s claims under California law. When Miracle later

GREENE ARCHIVES v. MARILYN MONROE 10233
petitioned the New York Surrogate’s Court to reopen and

vacate its orders related to the Monroe estate, Strasberg

moved to dismiss the petition, asserting that the Hawaii

court’s holding that New York law governed Monroe’s estate

because she died a domiciliary of New York was res judicata

and barred Miracle’s claims. In each of these judicial proceedings, Strasberg, as executor, acted on behalf of the Monroe

estate. Moreover, Strasberg’s status as a beneficiary of the

will and as an owner of Monroe LLC further supports a finding of privity. Strasberg’s representations about Monroe’s

domicile are thus also attributable to Monroe LLC.

Monroe LLC’s new litigation position that Monroe died

domiciled in California, asserted to obtain the benefit of California’s posthumous right of publicity statute, is inconsistent

with the preceding forty years of representations on behalf of

the estate that Monroe died domiciled in New York.

C.

Although Monroe LLC acknowledges that Frosch and

Strasberg represented that Monroe died a domiciliary of New

York, they contend that the estate did not successfully

advance these positions. However, the estate succeeded in

persuading numerous judicial and quasi-judicial bodies to

accept that Monroe died a domiciliary of New York. In the

Los Angeles County Superior Court probate proceedings, the

Inheritance Tax Appraiser reported, and the court agreed, that

Monroe died domiciled in New York. And in the District of

Hawaii, the court relied upon Strasberg’s representations that

Monroe died domiciled in New York to conclude that Miracle

failed to state a claim against the estate. Although the New

York Surrogate’s Court did not accept the Hawaii decision as

res judicata, it also applied New York law, and not California

law, to dismiss Miracle’s claims, based on its acceptance of

the representation that Monroe died a domiciliary of New

York. Indeed, the very fact that the New York Surrogate’s

Court exercised jurisdiction over Monroe’s probate proceed10234 GREENE ARCHIVES v. MARILYN MONROE
ings demonstrates that it was persuaded by Frosch’s representations that it had jurisdiction over Monroe’s estate. See N.Y.

Surr. Ct. Proc. Act § 205 (“The surrogate’s court of any

county has jurisdiction over the estate of a decedent who was

a domiciliary of the state at the time of his death, disappearance or internment.”). That Monroe died a domiciliary of

New York was a predicate for the Surrogate Court’s exercise

of jurisdiction for almost forty years. Never did Frosch, Strasberg, or any party to the probate proceedings dispute the

authority of the New York courts to probate Monroe’s will.

Judicial and quasi-judicial officers repeatedly accepted and

relied upon the estate’s representations about Monroe’s New

York domicile.

D.

The district court concluded that permitting Monroe LLC

to assert that Monroe died a domiciliary of California in this

litigation would unfairly allow it to obtain a “second advantage.” Milton H. Greene, 568 F. Supp. 2d at 1197. We agree.

Judicial estoppel is intended to protect the courts, and Milton

Greene need not prove that it detrimentally relied on the prior

representations about Monroe’s domicile to justify our application of judicial estoppel. See In re Coastal Plains, Inc., 179

F.3d 197, 205 (5th Cir. 1999). It is clear that Monroe LLC

desires to prove that when Monroe died she was domiciled in

California so that it can gain the significant advantage of California law, which, at its behest, now provides for a descendible, posthumous right of publicity that may pass through the

residual clause of the decedent’s will. If this position is

accepted by the courts, this right would have passed through

the residual clause of Monroe’s will, as specifically provided

in the amended California Civil Code § 3344.1. Monroe LLC

would gain Monroe’s right of publicity, which carries the

“immeasurable value of the name, likeness, and persona of

Marilyn Monroe.”

GREENE ARCHIVES v. MARILYN MONROE 10235
We have no doubt that the only way that Monroe LLC

would ever secure the right to assert Monroe’s right of publicity is if we accept its current representation that Monroe died

domiciled in California and allow Monroe LLC to attempt to

prove up that fact at trial. Monroe LLC would reap tremendous financial benefits if it could lay claim to Monroe’s right

of publicity. Forbes Magazine identifies Monroe as the thirdhighest money-maker in its annual ranking of “The TopEarning Dead Celebrities,” with an income of $27 million in

2011.14 Ownership of Monroe’s right of publicity would allow

Monroe LLC to control and profit from most, if not all, commercial exploitations of Monroe’s name, likeness and persona. Monroe LLC would thus derive a substantial advantage

—one which it contrived to create through the California

legislature—were it not estopped from asserting its current

position. 

Conversely, Milton Greene has already suffered a detriment

as a result of Monroe LLC’s litigation of its asserted rights to

Monroe’s right of publicity. The Milton Greene cases and

other attempted enforcement actions by Monroe LLC, like

those that led to the Shaw Family Archives case, have forced

Monroe photographers into lengthy litigation in order to simply defend their right to profit from their copyrighted photographs. If Monroe LLC were to succeed in establishing

ownership of Monroe’s right of publicity, Milton Greene’s

ability to commercially exploit the photographs that it created

and in which it owns copyrights would be subject to Monroe

LLC’s control. Further, allowing Monroe LLC to now represent that Monroe died domiciled in California would create

the perception that either prior courts or we have been misled

by representations about her domicile. The need to preserve

the dignity of judicial proceedings weighs heavily against

14See Dorothy Pomerantz, The Top-Earning Dead Celebrities, Forbes

Mag. (Oct. 25, 2011), http://www.forbes.com/sites/dorothypomerantz/

2011/10/25/the-top-earning-dead-celebrities/.

10236 GREENE ARCHIVES v. MARILYN MONROE
allowing Monroe LLC to proceed down its newly charted

path.

[9] This is a textbook case for applying judicial estoppel.

Monroe’s representatives took one position on Monroe’s

domicile at death for forty years, and then changed their position when it was to their great financial advantage; an advantage they secured years after Monroe’s death by convincing

the California legislature to create rights that did not exist

when Monroe died. Marilyn Monroe is often quoted as saying, “If you’re going to be two-faced, at least make one of

them pretty.”

15 There is nothing pretty in Monroe LLC’s

about-face on the issue of domicile. Monroe LLC is judicially

estopped from taking the litigation position that Monroe died

domiciled in California. Our conclusion in this regard is

guided by the need to preserve the dignity of judicial proceedings that have taken place over the last forty years and to discourage litigants from “playing fast and loose with the

courts.” See Hamilton, 270 F.3d at 782.

IV.

[10] Because Monroe died domiciled in New York, New

York law applies to the question of whether Monroe LLC has

the right to enforce Monroe’s posthumous right of publicity.

Because no such right exists under New York law, Monroe

LLC did not inherit it through the residual clause of Monroe’s

will, and cannot enforce it against Milton Greene or others

similarly situated. We observe that the lengthy dispute over

the exploitation of Marilyn Monroe’s persona has ended in

exactly the way that Monroe herself predicted more that fifty

years ago: “I knew I belonged to the Public and to the world,

not because I was talented or even beautiful but because I had

never belonged to anything or anyone else.”

16

We AFFIRM the district court’s judgment.

15Although numerous persons have attributed this quote to Monroe, we

have been unable to locate a definitive source. 

16Marilyn Monroe, My Story 123-24 (Cooper Square Press 2000). 

GREENE ARCHIVES v. MARILYN MONROE 10237