AT THE TIME OF MARILYN MONROE'S DRUG OVERDOSE in 1962, the notion of large corporations using dead movie stars to pitch their products was still gauche and unexplored. So for the first 20 years after Monroe's funeral her likeness was mostly exploited by manufacturers who attached it to calendars and rhinestone jackets and toilet paper and condoms and greeting cards with little strips of her alleged bedsheets stuck to them. In those days, when celebrities died, their images reverted to the public domain, where anyone could do what they wanted with them, and there was nothing a celebrity's heirs--which in this case happened to be Monroe's acting coach, Lee Strasberg, and a former psychiatrist named Marianne Kris who'd once had Monroe committed--could do about it. All Monroe's people could do was put out a more wholesome array of mementos in the hopes it would distract from the smarm. When the heirs finally went to market in the early '80s, they made up for lost time, issuing thousands of licenses for dolls and shoes and purses and perfume and playing cards and key chains and luggage. Then they arranged for her to endorse Max Factor and Chanel--all of which brought in millions of dollars a year, which is far more than she made when she was alive and sleeping or not sleeping with JFK. The benefits o fusing dead celebrities--for one thing, they don't commit felonies while their ads are running--soon became clear to Madison Avenue, and by the '90s Monroe was joined by Humphrey Bogart, whose children had allowed Diet Coke to digitally "reanimate" for a Super Bowl ad, and James Dean, who endorsed Porsche, the very car he crashed and died in, which some people found tasteless. Though not as tasteless as the time Fred Astaire's widow signed him up for a Dirt Devil commercial in which he was made to posthumously dance with a vacuum cleaner and appear to enjoy it.
That such things ever happened is chiefly due to two lucky lawyers named Mark Roesler and Roger Richman, who during the past 30 years have engaged in an enormous amount of litigation and lobbying so that the heirs of dead celebrities can control and merchandise their benefactors' images. They are pioneers of what's come to be known as the "dead celebrity licensing industry" or the "posthumous marketing industries," which by some accounts brings in $300 million a year.
The taller, more successful, and better known of the two is Mark Roesler, who is six feet six and looks a little shy and sad and sleepy His voice is low and hypnotic, and he emphasizes the more important points by drawing diagrams on a yellow legal pad. He used to be a roofer and would have been perfectly happy to go on roofing forever, but his mother thought it was dirty, and dangerous, so he got degrees in law and bush ness, then founded a company called Curtis Management Group, which is sort of like the William Morris for dead people. CMG promotes and protects from infringement the names and likenesses of more than 200 celebrities, most notably Marilyn Monroe, James Dean, Humphrey Bogart, Babe Ruth, and Jackie Robinson. According to CMG, these are among the top earners in the business, and each brings in seven figures a year. Monroe and Dean regularly appear on Forbes's list of top earning dead celebrities. CMG represents half of the athletes in The New York Times Book of Sports Legends. Its roster also includes a variety of historical figures such as Princess Di and Malcolm X and musical legends like Liberace and Tiny Tina, who works more than one would think. In the past few years Tiny Tim has made his way onto boxer shorts mad balloons and mugs and screen savers and bobbleheads and lottery tickets and has sung "Tiptoe Through the Tulips" in a Famous Footwear commercial. General Patron had an excellent run after September II, endorsing firearms and livening up recruitment ads for the U.S. Army. Ginger Rogers could have done more, but she left her estate to the Christian Scientists, who rejected a major tea company's request for "Ginger Rogers" tea on the grounds that Christian Scientists don't drink caffeine.
CMG, which employs 85 people, is headquartered in a lavish green glass building on the outskirts of Indianapolis, where Roesler lives. The agency also has a branch office in Rio and one in Los Angeles in the old Playboy penthouse on Sunset Boulevard. All are decorated with life-size cutouts, bronze busts, bas-reliefs, and photographs of clients. Roesler never tires of seeing his clients or their names. The license plate on his red Ferrari is J DEAN, and when he comes to Los Angeles, he sleeps in the office in a bed from Thomasville's "Bogart" collection. One of the reasons CMG is so successful, Roesler recently shouted over the noise of helicopters flying over his penthouse balcony, is that the firm is so litigious. When it comes to infringements, CMG leaves no stone unturned. Roesler employs 12 full-time lawyers to comb the malls, scour the Internet, and sort through international clipping flies in search of unlicensed merchandise bearing the likenesses of his clients. Roesler sometimes drives his Bentley to the souvenir shops of Hollywood Boulevard, but the sellers all know him and try to throw him out. Once CMG identifies an infringement, it immediately sends out a cease-and-desist letter informing the perpetrator that he is liable for damages. Then it confiscates the merchandise and ships it back to headquarters, where it is stored on large shelves in the basement.
The only other full-service agency for dead people is the Roger Richman Agency which is on Wilshire Boulevard in Beverly Hills and is run by Roger Richman, a short, round, excitable man who used to be a sculptor in Spain and an associate producer of B movies, and who used to represent Marilyn Monroe before she signed with CMG. Richman's agency is a six-person operation whose roster consists mostly of people like Johnny Weissmuller, Ethel Merman, and Jimmy Durante who don't tend to work as much as they once might have. His most virile clients are John Wayne and Steve McQueen, who these days is pitching Ford's new Mustang, but Albert Einstein is his cash cow. In the past few years Einstein, who was a friend of Richman's father, has appeared in ads for Apple Computer, Pepsi-Cola, Merrill Lynch, Nestle, Ford, Kodak, and Dow Chemicals. Einstein's image is controlled by Hebrew University of Jerusalem, and when Richman is not marketing it, he is going after the hundreds of infringements that crop up each week. Right now the university is concerned about an electronic game in which Hitler kills Einstein again and again.
THERE IS SOME DISAGREEMENT BETWEEN Roesler and Richman over who founded the deceased celebrity rights industry Roesler claims that dead Hollywood stars had no rights until CMG came along and that the agency was the first ever to license a celebrity's image for use on a postage stamp. But Richman, who calls Roesler a liar and a dwarf and a scumbag and accuses him of trying to poach Einstein for years, dismisses these claims as traif. Roesler, who denies he's ever gone after Einstein, refers to Richman as a "unique individual."
"It was me! I've always been avant-garde," Richman recently cried out in his conference room. Behind him is a figurine of a cat with Einstein's hair, standing on its hind legs and holding a blackboard that says E = M[C.sup.2]. Richman is writing a book about his adventures. The chapter on Marilyn Monroe begins, "I represented Marilyn Monroe in her afterlife for longer than her actual career." There is also a chapter about Elvis Presley; whose estate briefly hired Richman to go after the souvenir sellers that had set up shop across the street from Graceland and were selling cans of Elvis's alleged sweat that proclaimed MAY HIS PERSPIRATION BE YOUR INSPIRATION. "It was fabulous," he says. "I patted Elvis's pony, and the aunt was living upstairs in the house, and she had a little white fluffy thing that barked at all the tourists." Richman will also include a chapter called "The Hooker and the Bears," about a prostitute he once met while backpacking through the Sierras.
The truth is that Richman did get into the dead celebrity licensing business before Roesler, though only by a short while and entirely by accident. It was 1979, and Richman was 25 years old. "Before that, I did a movie called Diamonds in Israel and got caught up ha a terrorist attack," Richman says. "Then I worked four years in the film industry for a cousin that never paid me. Don't say you can't take it with you. Because he just died and took it with him. But anyway, I was totally broke and doing miscellaneous jobs, including some product placement work. I'd licensed some celebrity posters. I did one of ABBA and one of Brooke Shields. In May of 1979, W.C. Fields's people called me up and wanted me to be their agent, and I said, 'What agent? He's been dead 32 years!'"
The Fields estate wanted Richman to remove some of the more offensive novelty products from the market--most notably a poster in which Fields appeared in diapers. Richman explained that, according to the prevailing "right of publicity" laws, dead celebrities had no rights and neither did their heirs. He turned them down, and that was that.
Over the years there had been a few attempts to challenge the right-of-publicity laws in court, but none had been successful. In California, at the time of the Fields's phone call, Bela Lugosi junior was in a protracted battle with Universal Studios over a series of Dracula products the studio had licensed. As Universal saw it, since Lugosi had made all the Dracula movies while under contract, the studio owned the rights to Lugosi's image in perpetuity But as Lugosi junior saw it, Universal's right to his father's image expired when his father did, and as the rightful heir to and custodian of his father's estate he was entitled to protect and exploit his father's image as he saw fit. The courts ruled against Lugosi, upholding the existing laws.
When Richman read the ruling, he became fixated on a small paragraph. The paragraph stated that had Lugosi senior sold his own image for commercial purposes during his lifetime, his likeness would have constituted a common-law trademark. Since common-law trademarks are considered private property, it could, in fact, be passed down to Lugosi junior along with all the other private property he inherited from his father. The problem was that Lugosi senior had never sold his likeness.
"As soon as I read that," Richman says, "I ran out to the Rose Bowl swap meet and bought up all the old magazines I could find." Lugosi senior might not have sold his image during his lifetime, but plenty of stars had, including Mae West, who sold perfume and soap, Shirley Temple, who appeared in puffed wheat ads, Marilyn Monroe, who sold shampoo and shoes, and W.C. Fields, who pitched everything from hairbrushes to whiskey. As luck would have it, W.C. Fields's birthday was coming up, and the U.S. Postal Service had just announced that it was releasing a special commemorative stamp to honor the occasion. Richman rushed a contract over to the Fields heirs and told them he was going after the post office. "The next day I picked up the phone, and in my oldest 25-year-old voice I said, 'I want to speak to the postmaster.' The secretary treated me like every other scumbag that lost a letter that day: 'We'll be in touch.... ' The next day William J. Jones, who is still counsel to the postal service, calls and says, 'Who are you? This is preposterous!' To make a long story short, I mentioned the decision, he read it, and I was the first person in history to license the postal service. The day the stamp came out the postmaster general of the United States came to my little shack in Hollywood, and we got drunk together. Well, not him, actually, but the Fields family So that's how I got started."