Dispute Over Last Marilyn Monroe Photos Headed for Trial

MANHATTAN (CN) - A trial is on deck in Manhattan over the fair use doctrine and some of the last photos ever taken of Marilyn Monroe.

U.S. District Judge Paul Engelmayer wrote Friday that he would not rule on most of the issues raised by the parties -- the widow of deceased photographer Bruce Stern, who sued his former assistants, twins who have sold doctored copies of Stern’s work on eBay.

In 1962, Stern, a commercial and fine art photographer, shot Marilyn Monroe’s “Last Sitting,” for Vogue at the Bel-Air Hotel in Los Angeles. The session took place two months before Monroe’s death. Stern later used the photographs in a book with the same name about the experience of photographing Monroe, published in 1982 by William Morrow and Company, Inc.

When Stern died in 2013, his estate set about copyrighting all 2751 images from the "Last Sitting," according to the lawsuit, filed by his widow Shannah Laumeister Stern in Manhattan in December 2016. Shannah Stern accused twins Lisa and Lynette Lavender and OnGallery Limited of copyright infringement.

The original suit claims the Lavenders were reproducing Stern’s photos from the "Last Sitting," modifying them with crystals and jewels, and selling the copies on eBay. The complaint also alleges the Lavenders sold some copies to OnGallery, which displayed them on Pinterest.com and sold them on Amazon.com. In response, the Lavenders claimed that in a verbal agreement, Bruce Stern himself had entrusted digital copies of his work to them before he died.

Engelmayer wrote that though he had not made many rulings, the court had resolved “the scope of issues to be tried. These include the issue of ownership of copyright to the Last Sitting photographs and the Lavenders' right, under the doctrine of fair use, to use images of works-assuming they own such works-to market those works for sale on the Internet.”

The Lavenders wanted a judgment on a Lanham Act claim, the federal trademark law, which Shannah Stern invoked on the “certificates of authenticity” the sisters included with their products. These certificates were “signed by the artist” -- not Stern, which Shannah Stern said was misleading, but by the person who created the bedazzled copy.

Engelmayer declined to rule on the Lanham Act motion. He also declined to rule on a motion by the Lavenders that they were deprived of property because as they allege Stern entrusted his work to them.

Engelmayer did grant a summary judgment to Shannah Stern, ruling that she had not made any knowing misrepresentations of the works to eBay when she launched complaints about the Lavenders’ work

In a statement supplied to Courthouse News, Stern's attorney, Alan Behr, said, "Judge Engelmayer has issued an important decision affirming the copyright status and protection for one of the great bodies of photographic work of the twentieth century: the 'Last Sitting' images made by Bert Stern of Marilyn Monroe shortly before her death.

"The decision affirms that the estate of Mr. Stern is the holder of the copyright in those images. That is a victory for the legacy of Bert Stern as one of the greatest of American photographers, and it is important for photographers everywhere whose rights in their own legacy portfolios have either not been fully established or have been called into question," Behr said.

Lawyers for the Lavenders did not immediately respond to a request for comment Friday.

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