Marlon Brando’s Estate is Hung Up Over Madonna
More than 20 years ago, pop superstar Madonna released her 1990 hit song, “Vogue.” Now the Material Girl is being sued by the estate of Marlon Brando, which is demanding $20,000 for using Brando’s right of publicity on her 2012 world tour.
For those of you who can’t recall the lyrics to “Vogue,” Madonna name-drops a list of Hollywood icons:
“Greta Garbo, and Monroe / Deitrich and DiMaggio / Marlon Brando, Jimmy Dean / On the cover of a magazine.”
CMG Worldwide Inc., an Indiana-based brand licensing agency that deals with the publicity rights of deceased celebrities, negotiated a deal with Madonna’s management when she performed “Vogue” at the 2012 Super Bowl half-time show. As stipulated in the agreement, Madonna ended up paying $3,750 each to the estates of James Dean, Jean Harlow, Ginger Rogers, Greta Garbo, Marlene Dietrich, Joe DiMaggio, and others for using their names during the half-time show. Brando Enterprises was also included in this agreement.
After the Super Bowl, Madonna decided to perform “Vogue” on her 2012 world tour, The MDNA Tour. CMG alleges that it once again negotiated with Brando Enterprises to pay the estate $5,000 per “Vogue” performance for use of Brando’s name, likeness, and image on the tour and for all MDNA Tour promotions. CMG claims to have established a “most favored nations” clause, meaning all of the celebrity estates would receive equal treatment and be paid the same amount. CMG further claims that a week after accepting the agreement, Brando Enterprises upped their fee to $20,000.
CMG has requested that Brando Enterprises be enjoined from bringing suit against CMG, Madonna, her touring company, or her management. Meanwhile, Brando Enterprises alleges in the suit “despite the fact that Plaintiff is asking the Court to award it the Brando IP Rights for a mere $5,000, the true value of those rights in this litigation exceeds three-hundred thousand dollars ($300,000).”
The right of publicity has been used to limit public use of a celebrity’s name, identity, or likeness, usually for commercial purposes. The right is generally invoked in the context of commercial speech, especially when a company uses a celebrity in connection with a product, creating a false impression of celebrity-endorsement.
Successful publicity rights claims, under common law, require a showing of lack of consent, a resulting injury, and that the defendant appropriated the plaintiff’s name and likeness to the defendant’s advantage, commercial or otherwise. While Madonna’s camp claims to be paying tribute to one of many Hollywood icons during her tour, Team Brando claims that Madonna exploited Brando’s likeness during nearly 90 concert performances.