In a fascinating narrative, a federal judge in New York has found that the successors-in-interest of deceased photographer Bert Stern own the copyright to 2,751 iconic photos of Marilyn Monroe taken in a series of three sessions at the Los Angeles Bel-Air Hotel in 1962, shortly before her untimely death. 

Vogue published some of the “Last Sitting” series of Monroe’s images shortly after their creation. In Stern v. Lavender, one of several issues is who owned the copyright to the pictures: photographer Stern or Condé Nast, the owner of Vogue.

The dispute 

In 2002, Stern hired two assistants, twin sisters Lynette and Lisa Lavender, who believed Stern had given them wide latitude regarding the Last Sitting photos. The sisters and Stern allegedly had an agreement that the sisters could bejewel some of the photos and sell the altered versions online with half the profit going to Stern and half to them. They sold both modified and unmodified prints both before and after Stern’s death. 

After Stern’s death, his widow, the trustee of the trust that now holds his photos, sued the Lavenders for copyright infringement. 

The sisters argued that the pictures are “works for hire” by Condé Nast and that the company held the copyright, not Stern (or his successors after death). They also claim that even if Stern did own the copyright, he either gifted some of the pictures to them or at least authorized them to modify and sell copies of the images. 

Copyright ownership 

Stern successfully filed in 1982 for copyright registration of 100 of the photographs that he had just published in a book, followed by his estate’s successful registration of all of them in 2013. 

The judge explained that because the 1982 copyright registration of the 100 pictures in the book was granted within five years of the publication of the photos, federal copyright law says that the registration is “prima facie” evidence of the validity of that copyright vested in Stern. This presumption shifted the burden to the Lavenders to prove the invalidity of that registration. 

The 2013 registration of all the photos by Stern’s estate was more than 20 years after a 1992 publication, so no presumption of copyright ownership arose. Instead, the court had discretion to decide the weight given that registration. The judge said that the “common circumstances” of the two registrations support giving the later registration the same weight as the first, so he gave the same presumption of Stern’s ownership of copyright in all the photos. 

The court held that the Lavenders did not provide sufficient evidence to raise a genuine issue of material fact as to copyright ownership in the images and that Stern was therefore the copyright owner (and now the trust he established after his death).  

Copyright ownership was only one issue in this complex case, which is heading for trial on other unresolved issues. 

Artists should seek legal representation to preserve ownership rights 

This case shows the importance of photographers and other visual artists taking steps to establish clear ownership of copyrights to their works during their lifetimes to prevent any confusion in their legacy works after death. IPWatchdog quotes the plaintiff’s lawyer as saying that the opinion is an “important victory for holders to rights to legacy photographs” and that the judge “gave great weight to the value of creation and the creative act.” 

If you are such an artist, speak with an experienced intellectual property lawyer as soon as possible. Legal counsel will evaluate your situation and advise you of what steps to take, including potential copyright registration, to minimize any chance of confusion now and after your passing.