Printed for personal use only

Grateful Dead

Marilyn Monroe has endorsed cars. Humphrey Bogart's face is on slot machines. Fred Astaire has danced with a vacuum. These stars may be among the dearly departed, but they're earning more money than ever, thanks to the strange but lucrative business of deceased celebrity licensing

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."

Richman's first order of business as W.C. Fields's new agent was to send cease-and-desist letters to the manufacturers of W.C. Fields posters and plates and shot glasses, informing them that the free ride was over and that they were in violation of the law and would have to pony up licensing fees. The manufacturers were enraged. Once, at a souvenir convention, a man selling illegal W.C. Fields ties grabbed Richman and nearly strangled him. "I got hate mail," Richman says. "I have a book in my office called 'Jewish Lawyer Hate Mail.' I had two death threats in my time!" But the families of dead celebrities saw things in a more positive light, and Richman was soon representing Clark Gable, whose widow cried out, "Bring home the bacon!" after she signed the contract, then John Wayne, and Albert Einstein, and in 1982, Marilyn Monroe.

When Richman became Monroe's agent, it was the 20th anniversary of her death, and all the reporters wanted to know what sort of marketing blitz the estate was planning for the occasion. Richman took the moral high ground, expressing shock that anyone would want to capitalize on the tragedy of Marilyn Monroe. All the estate wanted to do, he said, was to save her from the people who had decimated her image for so long, and he set off on a world tour to hunt down Monroe's infringers. But in no time the estate had sold licenses to the New York Doll Company, which manufactured a $6,500 Marilyn Monroe doll in a mink coat, and to Thom McCann, which sold more than 2 million pairs of Marilyn Monroe shoes and matching handbags in 15 months.

For his efforts Richman took about 35 percent of everything his clients brought in, triple the cut of most Hollywood agents. But contrary to expectations, dead stars can be much more work than live ones. They're often accompanied by heirs who bicker over how to portray the defunct. With the exception of W.C. Fields's family, which allows the comedian to endorse alcohol and tobacco--on the grounds that he never said no to commercial endorsements when he was alive, so why should they?--most estates place strict limitations on how a celebrity can be used. John Wayne is not allowed to smoke cigarettes because he died o flung cancer. The Diana, Princess of Wales Memorial Fund forbids three-dimensional images, claiming they can't do her beauty justice; nor can she be pictured with food, on account of her well-publicized bouts with bulimia. Then there is the divvying up of the revenue, which can be quite cumbersome if the family members are feuding or the celebrity has left the estate to too many causes. Every time a check comes in for Mae West, it's divided among seven charities and family members. Lee Strasberg's widow, Anna, gets 75 percent of Monroe's revenues; the remainder goes to the Anna Freud Centre in London, which is where Marianne Kris willed it when she died.

As soon as it became apparent how much money was at stake, Richman began to receive more and more calls from the families of dead celebrities. "They came crawling out of the woodwork," he says. The problem was that most of the celebrities hadn't sold their images while alive. To remedy this situation, in 1982 Richman began lobbying for a new law in California that would grant equal rights to all dead celebrities. At the time there were a number of high-profile cases of contemporary stars trying to prevent the appropriation of their name or likeness, including Johnny Carson v. Here's Johnny Portable Toilets, and the climate seemed hospitable. Even so, it took a massive effort on Richman's part to convince a dubious legislature of all the terrible things that could hap pen to a perfectly nice celebrity once he or she died and couldn't sue. To persuade the legislature he convinced Elizabeth Taylor and Burr Lancaster to fly up to Sacramento. He also presented a series of vile mementos, including a greeting card with two cotton balls on it that said BRANDO'S BALLS. But the piece that won the politicians over was an eight-inch dildo with Ronald Reagan's head on it. "I wrapped it in white paper," Richman says, "and I held it up and said, 'This is a sexual device with the head of the president on it!' That's what got my law passed."

A COMPLETE REVERSAL OF THE BELA LUGOSI RULING, THE California Celebrity Rights Bill of 1984 granted a celebrity's heirs the right to control the commercial use of that celebrity's image for 70 years after his death. Similar legislation was soon passed in Tennessee, thanks to Elvis's people, and in Indiana, where it was championed by Mark Roesler.

Roesler, too, had gotten into the industry on a fluke. But he was much more methodical than Richman in his ascent. In 1968, his father-in-law bought Curtis Publishing, which owned The Saturday Evening Post along with the rights to all its famous Norman Rockwell covers. When Roesler got out of law school, he was put in charge of merchandising the Rockwell artwork into calendars and stationery and special-edition ceramic plates. Up to that time, such merchandising wasn't common, and when Roesler saw that he excelled at this line of work, he decided in 1980 to form his own entity, called Curtis Management Group, which would focus exclusively on celebrity, licensing. His first client was Elvis Presley, who had just died, and whose family was in a terrible row with his manager, Colonel Tom Parker, who was flooding the market with Elvis goods. The family wanted its own line of merchandise. Roesler obliged, with greeting cards and belt buckles and tapestries and calendars and grandfather clocks and shower curtains and Christmas ornaments and blankets and "Love Me Tender" shampoo and little stuffed hound dogs that sang "Hound Dog" and a $2,500 limited-edition porcelain Elvis Presley figurine dressed in the white leather jumpsuit he wore in his "Aloha from Hawaii" concert.

Roesler's time with Elvis was brief (the family soon went in-house for all its merchandising), but he more than made up for the loss by landing James Dean, who had grown up just down the road from him. Dean was starring in Levi's ads and wasn't being paid for them, which Roesler told the family he would remedy and did. After that, Roesler decided he'd need a sports figure to be taken seriously and found himself in a beauty parlor in Florida waiting to meet Babe Ruth's daughters. At the time they were both poor and one was blind. Their fortunes improved considerably after they signed with Roesler. A year later one was quoted in Sports Illustrated as saying, "Oh my! Daddy would be amazed. And so proud ... he is generating more money than when he was playing ball."

Looking back on those early days, Roesler says, "I realized I liked being an agent, but that being in Indiana, the only people I could ever represent would be dead. So I went on a mission to find them."

From the start Roesler's style was different from Richman's. Marilyn Goldberg, president of Museum Masters International, which for the past 25 years has represented makers of Marilyn Monroe art and has dealt with both men, describes Richman as "a wonderful, comfortable slipper" and Roesler as "a mover and a shaker." When the Internet craze hit, CMG hunted down all the cybersquatters who had made off with its clients' domain names, and the agency now runs Web sites like marilynmonroe.com and baberuth.com, which receive millions of hits a day Roesler--who has no standard rate but charges 40 percent on average--has been a ceaseless innovator of new licensing opportunities, which of late include Humphrey Bogart and Ingrid Bergman slot machines and scratch-off lottery tickets with the faces of James Dean and Marilyn Monroe printed on them. Roesler has also augmented his roster with the living, such as Anna Nicole Smith and Sophia Loren, who might spring fresher to young people's minds after they die. Some of Roesler's first live clients were squeamish about signing, such as the racecar driver Scott Brayton, who, when he signed, joked that he hoped it wouldn't jinx him, then died in a racecar crash shortly afterward. One of Roesler's most famous and successful live clients is '50s pinup Bettie Page, who everyone thinks is dead but who is actually just a recluse in the Valley.

But it is Roesler's prowess in court that has most distinguished him from Richman, who doesn't like to sue. Richman says, "It's like putting your own hand down the garbage disposal." Roesler has won a series of high-profile legal cases against such organizations as Major League Baseball, which, when it found out how many millions of dollars a year Babe Ruth was bringing in, sued on the grounds that the merchandise always portrayed him in uniform. Roesler won that case and a similar suit brought by Warner Bros. in 1991 that maintained that the studio was entitled to James Dean's new revenue stream, on the grounds that all the licensed images came from Warner Bros., which had produced the only three films Dean starred in. Less than a year later Roesler sued Warner Bros. and director Spike Lee on behalf of Malcolm X's widow, Betty Shabazz, who objected to all the unlicensed goods they were selling in conjunction with the release of Malcolm X. Shabazz won undisclosed damages that Roesler can only describe as being "in the seven figures," and then proceeded to put out her own line of mementos, which included air fresheners.

The case that brought Roesler national attention was the 1997 civil trial against O.J. Simpson, in which he testified as an expert witness on behalf of the family of Ron Goldman. As an authority on the valuation of dead people--and it could be argued Simpson was a little dead--Roesler declared that Simpson could reasonably be expected to make $25 million in his lifetime if he applied himself, and that was exactly the amount the jury awarded. Two years later, when Simpson auctioned off his possessions to pay his legal fees, Roesler purchased his "Sportsman of the Year" trophy along with the golf clubs he allegedly used the day of the murder, which Roesler displays in the entranceway of CMG's Indianapolis headquarters.

A good portion of the headquarters is occupied by the legal department, which zealously pursues infringers. Ten or so are found each day, says CMG's corporate counsel, Wes Zirkle, as he stands by a group of law interns huddled over computer screens. One has just come upon a ceramic tile ad in a Thai magazine that features a Marilyn Monroe look-alike with her dress blowing up as it did in The Seven Year Itch. That it isn't even Monroe but a look-alike is irrelevant, Zirkle says, explaining that the law protects one's name and likeness, and that when Absolut ran a whimsical ad featuring a bottle of vodka standing over a subway grating with its dress blowing up, the liquor company also had to pay a licensing fee. It will probably not be easy collecting from the Thais, he says, as most of Asia is hostile to intellectual property claims. For the past eight years CMG has been after a Korean company that makes James Dean underwear. The Arabs also tend to be uncooperative, he says, as are the Israelis, "but Germany is great." Most infringers, when caught, have no idea they've done anything wrong and try to get out of it with an apology. But CMG always insists on remuneration (never less than $750), even from the tiniest players, on the grounds that accepting a mere apology would set a bad precedent for the truly egregious violators.

When infringements are confiscated, they are housed in CMG's basement on enormous shelves. There are thousands and thousands of items, some going back 23 years and bearing the likenesses of clients CMG no longer represents. There are Elvis Presley dolls and Mark Twain bookmarks and Oscar Wilde greeting cards and Monopoly games with Whitey Ford and Ty Cobb in the place of land deeds. There are Bettie Page bobbleheads and battery-operated James Browns and James Dean condoms and James Dean aftershave and a James Dean Czech beer called "Rebel." Most of the shelves are taken up with Marilyn Monroe, who is represented by tote bags and zebra skin-and-rhinestone clutches and piggy, banks and blankets and perfume and birthday cards and jewelry and wine and soap and 200 T-shirts made by some feminists that feature the star in a bathing suit and say IF MARILYN MONROE WERE ALIVE TODAY SHE'D BE TOO FAT TO MODEL. To walk among these objects is to pass through the entire history of the dead celebrity, licensing industry and all that has happened in it. One can only hope that Marilyn Monroe is grateful for the effort that has been expended on her behalf to protect her from infringers, who might otherwise have compromised her legend and devalued her currency among the rightful manufacturers of slot machines and shower curtains.

Still, it is hard to know what the future holds for Monroe. Richman, who represented her estate for 14 years before Roesler lured her away, seems to take comfort in the belief that her earnings will eventually wither away noting that as far back as the '80s the estate so oversaturated the market that a major apparel company broke off licensing negotiations, citing her omnipresence. "I warned them," he says, "about all those salt and pepper shakers."

Roesler insists that Monroe is holding her value. "Marilyn Monroe is the most beautiful and sexy woman ever," he says. If her revenues drop, he says, they can always be raised by a new blitz of ads or merchandise or celebrations of her birth or death or the rerelease of this movie or that. In the event that she becomes too fat or too irrelevant to the young people of today, she can always be digitally enhanced into a slimmer body and cast in a brand-new movie, using the latest Hollywood technologies. CMG recently arranged for Laurence Olivier's morphed appearance in Sky Captain and the World of Tomorrow, and the agency is in discussions with an unnamed studio about a new film starring both Monroe and Dean. It is unclear, though, whether their estates will allow them to have sex.

In the meantime, there is the matter of the late Marlon Brando. His estate recently filed trademark protection for the actor's image and announced that Brando will appear in commercials. In Richman's estimate, that shouldn't happen for another five to seven years, because advertisers like to make sure the body's cold. But Roesler says Brando ads could be up and running within a year if done tastefully, and he clearly expects the estate to choose CMG when the time comes. "They know we're here," he says.

If the Brando estate does choose CMG, it'll be another blow to Richman but nothing he can't weather. "We're rocking and rolling," he says. "We just signed Gene Kelly and Leonard Bernstein, and we're looking to do some umbrella deals and bring out a new line of instruments. We could do tubas and violins."