The estate of yet another super-celebrity is vigorously asserting its intellectual property rights.

On April 17, 2009, fiduciaries representing Marlon Brando’s estate and trust filed suit in Los Angeles County Superior Court against a group of entities that own and operate the Broadcast Center Apartments, which are located just outside CBS Television City in Los Angeles. The claim is the apartment developers infringed Brando’s trademarked name.

AN ICON

Like James Brown and Marilyn Monroe, whose estates also recently have fought potential infringers,* Marlon Brando is not just a celebrity or star; he’s an icon.

Brando died on July 1, 2004, at the age of 80. During his life, he made nearly 40 films and received many honors—including two Best Actor Academy Awards, three Golden Globe Awards, and a Star on the Hollywood Walk of Fame.

According to the latest American Film Institute (AFI) surveys, Brando ranks fourth on the list of the all-time greatest male acting legends, and four of Brando’s films rank within AFI’s Top 50 of all-time motion pictures. Film buffs can easily guess these films, but for everyone else, they are The Godfather (#2 on the AFI list); On the Waterfront (#19); Apocalypse Now (#30); and A Streetcar Named Desire (#47).

PORT-MORTEM POSSE

Overseeing Brando’s estate and trust are movie executive Mike Medavoy (currently chairman of Phoenix Pictures), accountant Larry Dressler (of Dressler & Associates in New York), and Brando’s former personal assistant, Avra Douglas.

The complaint, Brando Enterprises, L.P v. Apartment Investment and Management Company, No. SC102683 filed in Los Angeles County Superior Court, states that upon Brando’s death, all of his intellectual property rights, including rights of publicity, became the property of the executors/trustees, and that they filed numerous trademark applications related to the “Brando” name. The fiduciaries eventually began operating as Brando Enterprises, a business venture designed to protect and manage the Brando brand.

The complaint states that the plaintiffs consistently exercised careful consideration before permitting the commercial use of the Marlon Brando trademarks or publicity rights, to ensure that they were associated with high-quality products and services. One commercial use that passed their test was a multi-million dollar licensing agreement for an eco-resort and hotel called “The Brando,” on the Brando-owned French Polynesian atoll of Tetiaroa. This hotel isn’t slated to open for business (or generate revenue) until 2012.

The attorney for Brando Enterprises, Jeffrey Abrams of Los Angeles’ Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, has spent the last several years assisting the estate in its hunt for trademark infringers. Apparently, he’s been successful in at least identifying them. According to an April 20, 2009 article in The New York Times, a summary recently compiled by lawyers for the Brando Trust showed an astonishing 26 separate legal cases that have been filed since 2003. And how does Abrams deal with infringers? The Times quotes Abrams parroting Brando’s famous Godfather line: He says “I’m the guy who makes them an offer they can’t refuse.”

The apartment complex at issue in the Los Angeles litigation allegedly advertised, without permission from Brando Enterprises, multiple apartment floor plans including “The Brando” (rent: $1,999 to $2,592 per month), “The Brando Den” (rent: $2,199 to $2,758 per month), and “The Brando Loft” (rent: $2,399 to $3,101 per month).

The complex allegedly had other floor plans named after other celebrities making it “irrefutable” (according to the complaint) that the use of the Brando name was intended to refer to the late actor.

The complaint also mentions that the Brando name is being used without permission in other locations by other developers. A quick Google search indicates many floor plans for rent or sale throughout the world, including single family homes in Cypress, Texas; Perth, Australia; and Brighton, Colo., Many of these floor plans are marketed by companies with floor plans named for other celebrities, such as “The Hepburn,” “The Bogart,” or “The Sinatra”.

THE LAW

Commentators on the case have wondered how best to create a meaningful Brando brand. An editorial on April 22, 2009 in The New York Times, wondered which of Marlon Brando’s many roles as an actor or man the Brando brand will reflect? Will it be the young man in The Wild One? Don Corleone in The Godfather? The private man who retired to his private atoll in the South Pacific?

Medavoy reportedly has said the Brando name represents the “traditional male, in some ways rebellious, but not all the way” and that Brando himself always took pride in not commercializing himself.

Intellectual property rights, especially copyrighted images and rights of publicity, are creating new issues and rights for fiduciaries across a patchwork of state property rights and federal laws. Do fiduciaries connected with celebrity estates have a duty to heirs and beneficiaries to maximize the post mortem value of their decedent’s name or image? How would a breach of such a duty be measured? Must professional marketers and infringement policy be employed?

This is clearly one of the most interesting, developing areas in trust and estate law. Stay tuned.

* EDITOR’S NOTE: Also see the Wealth Watch article “Celebrity Estates Face Off With Publicity Laws: Marilyn Monroe died in 1962 but only recently lost control of her likeness; James Brown just died in 2006 but may already lose control of his,” by John T. Brooks, partner, and Taylor Corbitt, summer associate, Foley & Lardner LLP, Chicago, June 19, 2008.