Intellectual Property

Marilyn Monroe’s Last Sit -- The Copyright Battle Over Her Iconic Final Photos

Bare knuckles fight over iconic photos.

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One of the Last Sitting photos

Bert Stern may have passed away back in 2013, but his legacy lives on in his photographs and, recently, in litigation. For a couple of decades starting in the 1950s, there were few lensmen alive that could boast a more star-studded, innovative, and compelling portfolio of photography than Stern. Creating works for magazines like Vogue and Life, he captured on film Audrey Hepburn, Sophia Loren, Marilyn Monroe, Madonna, and countless others, conceding along the way that he “fell in love with everything he photographed.”

This was evident from his personal life, which included numerous dalliances with various paramours, many of whom had been the subjects of his work. And the dalliances weren’t just with women, but with the pillbox as well, as methamphetamines allegedly fueled his high-octane lifestyle.

Despite his vices, Stern found great success in various creative fields, including commercial photography, in which he created iconic images for Spam, Smirnoff, and the film Lolita (Stan Kubrick was a pal from their shared days in the mailroom at Look magazine). With these successes in hand, he largely drifted from the public eye by the 1980s.

But Stern is now back in the (legal) press after lo these many years because of one of his more famous projects: The Last Sitting, which depicted Monroe, swathed in gossamer scarves, sheets, pearls, and little else emoting in a Bel-Air hotel room. The session was also historic in that it was her last while on our mortal coil — by the time the magazine edition containing the photographs hit the newsstands, she had moved on. The photographs continue to be popular, in both the worlds of art and commerce, and are to this day valued by Monroe fans and others who find them iconic and visually arresting. The question of who gets to exploit that value is currently before Judge Paul A. Engelmayer of the Southern District of New York.

The facts in Stern v. Lavender are as sinuous as one of Marilyn’s scarves. Stern’s former assistants, identical twin sisters Lisa and Lynette Lavender; Stern’s estate, led by his widow, Shannah Laumeister Stern; and Conde Nast magazine are all laying claim to various rights in and to the Last Sitting photographs. The Court recently tackled the who-owns-what question on the occasion of the parties’ filing cross-motions for summary judgment.

It was undisputed that Stern created the photographs at issue for Vogue, while under contract with Conde Nast, which publishes Vogue. Thereafter, Stern published the photographs in a book and exhibited them at galleries around the world. At one point he sued Conde Nast for using the photographs without permission. During that case, Conde Nast claimed ownership of the photographs under the work-for-hire doctrine; Stern disagreed, and the case settled.

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The Lavender sisters had, with Stern’s approval and involvement, bejeweled a number of the Monroe photographs with various three-dimensional objects, creating derivative works that were sold to the public. Stern conducted these sales and shared the profits with the Lavenders. Additional versions, bejeweled and not, were sold online by the Lavenders, again with Stern’s consent.

Upon Stern’s passing, his estate took issue with the Lavenders’ side hustle, suing them for copyright infringement. In response, the Lavenders argued that they had Stern’s consent and license to monetize the Monroe photographs and even if they didn’t it was Conde Nast and not the Stern estate that owned the copyrights to Stern’s Monroe photographs.

Stern’s estate begged to differ, arguing that Stern, and not Conde Nast, had creative control over the project and that Stern himself had borne much of the costs of the shoot, including footing “the bill for the cases of Dom Perignon and Chateau Lafite-Rothschild,” which in many ways fueled the freewheeling, uninhibited shoot by “liberat[ing] his and Monroe’s creative impulses.”

Thus, Stern’s estate argued, under the “instance and expense” test, which was applied to works under the 1909 Copyright Act to ascertain whether they were works-for-hire, the copyrights could not belong to Conde Nast and must belong to Stern, at whose instance and expense the works had been created.

The Court largely agreed, noting that the defendants’ argument that Conde Nast was the true owner of the Monroe photographs was predicated on statements by Stern in a decades-old book about the shoot. This “hagiographic memoir of his encounters with a 20th century icon” was “insufficient to rebut the presumption in his favor as to the Last Sitting.” And, there was the issue of Conde Nast itself for the most part recognizing Stern’s copyrights in the works since the time they were created by, among other things, obtaining from him licenses to use the works.

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Judge Engelmayer considered the above and found that Stern’s estate was the true owner of the iconic Last Sitting photographs. The other questions — including whether Stern licensed the Lavender’s use of the works — remain to be tried.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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