Intellectual Property Attorney

Madonna’s Use of Marlon Brando’s Likeness Spawns Lawsuit

While Madonna is enjoying yet another hugely successful worldwide tour — Billboard Magazine claims it is on track to be “among the biggest not only for 2012, but also one of the top tours of all time” — lawyers are battling over the practically split-second usage of Marlon Brando’s likeness during performances of Madonna’s 1990 hit
Vogue. During performances, as Madonna sings the famous lyrics “Greta Garbo, and Monroe/Dietrich and DiMaggio/Marlon Brando, Jimmy Dean/On the cover of a magazine”, likenesses of the deceased celebrities appear and change in sync with the lyrics. Brando Enterprises, L.P., owner of Marlon Brando’s rights, and its representatives, Brand Sense Partners, LLC, claim they are owed “well over $300,000 in licensing fees” for the use of Brando’s likeness but Madonna’s representative, CMG Worldwide, Inc., claims the parties agreed to a one-time $5,000 fee.

According to a complaint filed by CMG Worldwide in August in Indiana state court, CMG Worldwide initially entered into a license agreement with Brand Sense Partners allowing Madonna to use Brando’s likeness during her performance of Vogue at the NFL’s Super Bowl Halftime Show on February 5, 2012, for a $3,750 fee. CMG Worldwide alleges that the parties subsequently agreed to the use of Brando’s likeness throughout Madonna’s 2012-2013 worldwide tour, again, for a fee of $3,750. The complaint alleges that the fee was later increased to $5,000 because the parties had agreed to a “most favored nations” clause, meaning that the fee paid for the use of Brando’s likeness would not be less than the fee paid for the use any other deceased celebrities’ likeness on the tour.

After CMG Worldwide had negotiated rights with the other deceased celebrities, it claims Brand Sense Partners changed the terms of their agreement and demanded a $20,000 fee. In response, CMG Worldwide filed the state court action seeking: (i) a declaratory judgment that the parties had reached a valid and enforceable agreement with a $5,000 fee; or (ii) in the alternative, the parties’ agreement for a $5,000 fee should be enforced because CMG Worldwide had relied to its detriment on Brando Enterprises’ and Brand Sense Partners’ representations.

In September, Brando Enterprises and Brand Sense Partners went on the offensive. They removed the case from state court to the U.S. District Court for the Southern District of Indiana. In the Notice of Removal, Brando Enterprises and Brand Sense Partners claim that “the true value of [the] rights [at issue] in the litigation exceeds” $300,000. In particular, they claim the $5,000 fee is not appropriate because CMG Worldwide sought to broaden the uses of Brando’s likeness beyond a single performance — “Plaintiff is seeking to use [Brando’s likeness] throughout the Tour, which, on information and belief will include nearly ninety separate uses of ‘[Brando’s likeness], during nearly ninety different concert performances.” Moreover, Brando Enterprises and Brand Sense Partners claim CMG Worldwide is seeking to use Brando’s likeness for “promotional purposes, as well as in DVDs and other media for sale and distribution.” They claim the “additional uses” of Brando’s likeness “increases the monetary value of this litigation in excess of $300,000.”

The case is CMG Worldwide, Inc. v. Brando Enterprises, L.P. et al, Docket No. 12-cv-1348 (S. D. Ind.). We will update this blog as the case progresses. Look for future posts addressing intellectual property rights associated with deceased celebrities.

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