Marilyn Monroe “Last Sitting” Copyright Case Ends in Settlement

NEW YORK – Back in July, I wrote about a ruling in Stern v. Lavender, a copyright infringement case which pitted Shannah Laumeister Stern, the widow of photographer Bert Stern, against Lisa and Lynette Lavender, twin sisters who once served as Bert Stern’s assistants.

The case has now ended in a settlement, the details of which are not included in the order of discontinuance issued by U.S. District Judge Paul Engelmayer last week.

It’s fair to say the photographs at issue in the case – images snapped at the “Last Sitting” of Marilyn Monroe – are far more famous than the litigants involved. What animated my interest in the case, in addition to the iconic subject of the photos, was the way in which it emphasized the importance of clarity in “work for hire” arrangements when it comes to contracting for the creation of artistic works.

In his July ruling, Engelmayer found that Bert Stern “was – and that his successors in interest are — the rightful owner(s) of the copyright to the photographs,” because the Lavenders had not “adduced evidence sufficient to create a genuine dispute of material fact.”

Without getting in to a long reiteration of my previous post about the case, suffice to say Engelmayer’s decision was an object lesson in the importance of paying attention to detail when you contract with a third-party to create things like photographs, movies, written works, or anything else which is subject to copyright protection. Absent clear indication of a work for hire relationship, the copyright holder is assumed to be the author/creator of the work. So, if you hire someone to shoot stills or film a video for you, it’s incumbent upon you to structure your contracts and agreements with that person accordingly.

Setting up a proper work for hire agreement isn’t challenging for an attorney; there’s plenty of boilerplate verbiage for them to draw upon in crafting one. The kind of controversy litigated by the Lavenders and Stern are well-known to lawyers who are versed in intellectual property law, so at this point in the history of American copyright law, there’s really no excuse for a studio or producer failing to include such language in their contracts and agreements.

The work for hire lesson isn’t the only one to take from Stern v. Lavender, though. The fact the case just ended in a settlement agreement without heading to trial on the Lavenders’ alleged infringement is, in my opinion, an example of one or more parties to the case knowing when to quit.

Once Engelmayer ruled Stern and his successors are the rightful owners of the copyrights in question, the outcome of the pending trial was likely to be a finding that the Lavenders infringed on Stern’s copyright by selling the images in question.

Still, once the case was set for trial on the core infringement questions, the Lavenders had one Hail Mary pass they tossed at Stern’s side of the dispute: A document supposedly signed by Bert Stern near the end of his life, in which Stern allegedly stated that Lisa Lavender “that Lisa Lavender… is allowed to sale [sic] my photos that [are] in her possession.”

In response to a related motion in limine filed by the Lavenders, Stern’s counsel argued the document should be disallowed because “Defendants admittedly destroyed the computer on which it was drafted. They therefore cannot prove that the document was in fact prepared before Mr. Stern’s death.”

The inability to definitively prove the document’s authenticity is crucial, because as Stern’s attorneys noted in their motion, the opposing parties have already agreed that “under New York law, Defendants have the burden of proving, by clear and convincing evidence, each of the elements of the making of valid gifts, including proof of the decedent’s donative intent.”

“Given the relationship between the Lavenders and Mr. Stern, they also have the burden of showing (again, by clear and convincing evidence) that the ailing and elderly Bert Stern understood that he was making gifts of large quantities of the most valuable photographs of his lifetime of work and that there was no fraud, mistake or undue influence,” Stern’s attorneys added.

Without knowing more about the nature and terms of the settlement agreement which has brought an end to this case, we’re left to speculate as to how favorable or unfavorable the settlement is to each side. Either way, the fact Stern and the Lavenders have settled suggests they were able to hammer out an agreement both sides considered a better option than continuing to litigate the controversy.

Such negotiated outcomes can be quite unsatisfying of course, especially for those of us who aren’t party to the case and are simply curious to see how the court will rule on its merits. Litigants and their attorneys don’t have the luxury of concerning themselves with that sort of disappointment, of course. The parties to a lawsuit aren’t in court to entertain the world, after all, they’re seeking resolution of a conflict – and that resolution needn’t be something which sets a precedent or settles questions beyond those pertinent to the parties involved.