CMG Worldwide, Inc. v. The Estate of Marilyn Monroe, LLC

Filing 1

COMPLAINT against The Estate of Marilyn Monroe, LLC. (Filing Fee $ 350.00, Receipt Number 1033176)Document filed by CMG Worldwide, Inc. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(mro)

LIMITED COOPERATION AGREEMENT
AGREEMENT made this 27th day of January, 2006 by an between ONE WEST
PUBLISHING, INC., a California corporation (hereinafter "ONEWEST"), on the one part,
and CMG WORLDWIDE, INC., an Indiana corporation (hereinafter "CMG"), on the other
part.
WHEREAS, ONEWEST is in the business of representing photographic artist
and publishing and exploiting their works; and
WHEREAS, SHIRLEY DE DIENES, an individual (hereinafter "MRS. DE
DIENES"), who is the sole heir of ANDRE DE DIENES (hereinafter "ANDRE") and
GEORGE BARRIS (hereinafter "BARRIS") are clients of ONEWEST; and
WHEREAS, MRS. DE DIENES and ONEWEST (hereinafter collectively "the DE
DIENES GROUP") have filed a lawsuit in the United States District Court for the Central
District of California against CMG, the MARILYN MONROE, LLC, a Delaware Limited
Liability Company (hereinafter "MONROE LLC") and ANNA STRASBERG, an individual
(hereinafter "STRASBERG") (hereinafter collectively "the STRASBERG GROUP") titled
DE DIENES, et al. vs. CMG, et al., Case Number CV052516 (hereinafter "California
Lawsuit"), claiming, among other things, that the STRASBERG GROUP had violated
certain intellectual property rights (hereinafter "De Dienes Intellectual Property Rights")
which MRS. DE DIENES claims to have in photographic images of the late Marilyn
Monroe (hereinafter "MARILYN") taken by the ANDRE (hereinafter "ANDRE
Photographs"); and
WHEREAS, the STRASBERG GROUP has filed a lawsuit in the United States
District Court for the Southern District of Indiana against MRS. DE DIENES and others
titled CMG, et al. vs. de Dienes, et al., Case Number 1:05-cv-0448-LJM-WTL
(hereinafter "Indiana Lawsuit") claiming, among other things, that the MRS. DE DIENES
had violated certain publicity and exploitation rights in the likeness and image of
MARILYN which are owned by STRASBERG (hereinafter "Monroe Intellectual Property
Rights"); and
WHEREAS, notwithstanding the continued differences between the DE DIENES
GROUP, on the one part, and the STRASBERG GROUP, on the other part, with
respect to their respective rights and/or liabilities which may result from either the
California Litigation and/or the Indiana Litigation, ONEWEST and CMG desire to enter
into certain limited transactions with each other regarding the potential exploitation of
the ANDRE Photographs, photographs taken by BARRIS of MARILYN (hereinafter
"BARRIS Photographs") and photographs of MARILYN taken by any other
photographer, who is represented by ONEWEST, (hereinafter "Other Monroe
Photographs"); and
WHEREAS, ONEWEST and CMG each acknowledge that by entering into this
Agreement, unless specifically stated to the contrary, neither are conceding nor altering

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their respective legal assertions or positions vis-a-vis the California Lawsuit and/or the
Indiana Lawsuit;
NOW THEREFORE, in consideration of the mutual covenants herein set forth,
and for other good and valuable consideration had and received, the parties do hereby
agree as follows:
1.
CMG, on behalf of itself, its agents and assigns and all companies or
entities which it represents (hereinafter collectively "the CMG Entities") agrees,
prospectively, not to attack the validity of the De Dienes Intellectual Property Rights in
and to the ANDRE Photographs, the intellectual property rights in and to the BARRIS
Photographs and the intellectual property rights in and to the Other Monroe
Photographs (except as same may be affected and determined to the contrary as a
result of the California Litigation and/or the Indiana Litigation).
2.
ONEWEST, on behalf of itself, its agents and assigns and all companies
or entities which it represents (collectively "the ONEWEST
Entities") agrees,
prospectively, not to attack the validity of the Monroe Intellectual Property Rights and
acknowledges that from this point forward, STRASBERG has a protectable right in the
Monroe Intellectual Property Rights (except as same may be affected and/or
determined to the contrary as a result of the California Litigation and/or the Indiana
Litigation).
3.
The CMG Entities acknowledges that the following types of exploitations
of the ANDRE Photographs and the BARRIS photographs, may be commercially
exploited by ONEWEST, without any compensation or consideration being paid to the
CMG Entities, except as otherwise specifically agreed to in writing between CMG and
ONEWEST:
A.
Vintage prints of any of the ANDRE Photographs, BARRIS Photographs
and/or Other Monroe Photographs (i.e., original prints);
B.
Limited Editions of any of the ANDRE Photographs, BARRIS Photographs
and/or Other Monroe Photographs (i.e., photographic print copies in any medium, such
as silver, gelatine prints, digital prints, etc.), up to the first 200 copies of said Limited
Editions;
C.
Income derived from any documentary film, feature film or book on the life
of ANDRE or such other photographer that is represented by ONEWEST, which would
include images of the ANDRE Photographs, the BARRIS Photographs and/or Other
Monroe Photographs, as well as ancillary exploitations of such works, such as DVDs or
other known and unknown reproduction mediums of such documentary films, feature
films and/or books, in any medium now known or hereinafter devised. However, to the
extent that any merchandising or products embodying the ANDRE Photographs, the
BARRIS Photographs and/or Other Monroe Photographs are sought to be derived from
such a documentary, feature film and/or book featuring MARILYN, the CMG GROUP

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will be consulted and compensated, pursuant to the terms established in Paragraph 4,
below.
4.
The fees charged for the exploitation of these rights to third party
licensees shall be on a case by case basis, the division of which in some cases shall be
on an equal basis with respect to the royalties and/or fees paid to both Marilyn Monroe,
LLC and One West (and/or its clients). This exploitation shall encompass the
Intellectual Property Rights of the ANDRE Photographs, the BARRIS Photographs
and/or Other Monroe Photographs which are embodied on some type of merchandise
and/or product, exhibited throughout the world (hereinafter collectively "Products"):
A.
Notwithstanding the foregoing, CMG shall be entitled to an
agent/representative fee equal to thirty five percent (35%) of all income and/or
advances derived from the exploitation of Products, before ONEWEST shares in the
proceeds from such exploitation.
B.
During the initial period of this Agreement CMG shall guarantee a
minimum income to ONEWEST of no less than Three Hundred Twenty Five Thousand
Dollars ($325,000.00) over the entire initial period, payable at the rate of Eighty One
Thousand Two Hundred Fifty ($81,250) per year during the first 4 years of the term of
the Agreement (hereinafter "Minimum Royalty Advance") from the exploitation of
Products embodying either the ANDRE Photographs, the BARRIS Photographs or the
Other Monroe Photographs, net of any fees payable to CMG and the amounts payable
to STRASBERG. This guarantee is based on the mutual desire of both CMG and
ONEWEST to elevate the market value of licensing rights of MARILYN images and to
maintain a high level of integrity for the use of such images. The Minimum Royalty
Advance shall be payable by CMG to ONEWEST in equal monthly installments of Six
Thousand Seven Hundred Seventy Dollars and Eighty Three Cents, commencing on
the February 1, 2006 and continuing on the first day of each month thereafter
throughout the first four years of the Term of this Agreement.
5.
CMG will make a one-time payment of Fifty Thousand Dollars
($50,000.00) to ONEWEST, upon execution of this Agreement, in consideration of
ONEWEST entering into this Agreement.
6.
ONEWEST agrees to not unreasonably withhold approvals of any of the
proposed uses that CMG generates for the ANDRE Photographs, the BARRIS
Photographs and/or Other Monroe Photographs. These uses will be generated from at
least the following areas: advertising, merchandising, media and editorial uses.
7.
CMG agrees to create and maintain separate dedicated websites for
ANDRE, BARRIS and ONEWEST, featuring the ANDRE Photographs, the BARRIS
photographs and ONEWEST other projects. CMG will desist from displaying any of the
ANDRE Photographs or the BARRIS photographs on any other website or page which
CMG might maintain, without the express written permission of ONEWEST. CMG
further agrees to disassociate itself from any fan websites which permits file sharing of

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pictorial images infringing on copyrights held by ANDRE, BARRIS or ONEWEST . CMG
will make any and all reasonable efforts to protect the ANDRE Photographs and the
BARRIS photographs, as hosted within marilynmonroe.com, from any and all
unauthorized downloading, copying and/or linking (or any such action where a user may
willfully remove such images from the marilynmonroe.com domain and copy such
images to a different hosted domain for further exploitation) including but not limited to
linkblocking, "right-click" blocking and/or watermarking (either digitally or otherwise) and
badging (by way of logos and/or large copyright designation burnt into the image) on
such images presented on marilynmonroe.com.
8.
Both CMG and the ONEWEST will actively cooperate and participate with
each other, in good faith, to police each others Intellectual Property Rights and advise
each other of any discovered violations of such Intellectual Property Rights. CMG
further agrees that to the extent anyone is violating the Intellectual Property Rights in
the ANDRE Photographs, the BARRIS photographs and/or Other Monroe Photographs,
CMG will take all reasonable steps, including, but not limited to, joining in any litigation,
to protect the said Intellectual Property Rights by enforcing the Monroe Intellectual
Property Rights against such third party violators of the Intellectual Property Rights in
the ANDRE Photographs, the BARRIS photographs and/or Other Monroe Photographs.
9.
The initial period of this Agreement shall be for a period of five (5) years
from the date of execution of this Agreement. This Agreement may be extended for
additional periods of one (1) year each upon the mutual consent of the parties. If
neither party gives the other party written notice of termination at least thirty (30) days
prior to the end of the then current term of the Agreement, the Agreement shall be
deemed automatically continued for an additional one (1) year period. The initial term
and each extended period shall sometimes herein be referred to as "Term".
10. Upon fulfillment of the executory terms of this Agreement, the ONEWEST
Entities(hereinafter "Releasors 1"), on behalf of itself and its representatives,
successors, heirs, officers, directors, attorneys, agents and assigns, shall release,
acquit and forever discharge CMG and each of its respective representatives,
successors, heirs, officers, directors, attorneys, agents and assigns (hereinafter
collectively "Releasees 1") of and from any and all actions or causes of action, suits,
claims, controversies, liabilities, obligations, variances, damages, debts, sums of
money, bills, trespasses, executions, judgments and demands whatsoever, whether the
same be liquidated or unliquidated, contingent or fixed, matured or unmatured, choate
or inchoate, determined or undetermined, known or unknown, foreseen or unforeseen,
past, present, or future, at law or in equity, and whether or not well founded in fact, law
or equity, which the Releasors 1 ever had or may have, now have or which they or their
heirs, personal representatives, successors or assigns, hereafter can, shall or may have
against the Releasees 1 and each of them for or by reason of any matter, cause or thing
whatsoever, from the beginning of the world to and including the date of this Release,
with the exception of the issues arising out of the subject matter of the California
Lawsuit and the Indiana Lawsuit. The matters, causes and things referred to in this
paragraph are hereinafter collectively referred to as the "Released Matters."

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In addition to the above and not as any limitation thereon, Releasors 1, on behalf
of themselves and their successors, heirs and assigns, agree not to make, institute or
prosecute any claim, demand, action or cause of action of any kind whatsoever for
damages, costs, debts, expenses or losses of any kind whatsoever (including, without
limitation, attorneys' fees) based on or arising from the Released Matters or any of
them.
11. Upon fulfillment of the executory terms of this Agreement, the CMG Entities
(hereinafter collectively "Releasors 2") on behalf of itself and its representatives,
successors, heirs, officers, directors, attorneys, agents and assigns shall release, acquit
and forever discharge ONEWEST and its representatives, successors, heirs, officers,
directors, attorneys, agents and assigns (hereinafter collectively "Releasees 2") of and
from any and all actions or causes of action, suits, claims, controversies, liabilities,
obligations, variances, damages, debts, sums of money, bills, trespasses, executions,
judgments and demands whatsoever, whether the same be liquidated or unliquidated,
contingent or fixed, matured or unmatured, choate or inchoate, determined or
undetermined, known or unknown, foreseen or unforeseen, past, present, or future, at
law or in equity, and whether or not well founded in fact, law or equity, which the
Releasors 2 ever had or may have, now have or which they or their heirs, personal
representatives, successors or assigns, hereafter can, shall or may have against the
Releasees 2 and each of them for or by reason of any matter, cause or thing
whatsoever, from the beginning of the world to and including the date of this Release,
with the exception of the issues arising out of the subject matter of the California
Lawsuit and the Indiana Lawsuit. The matters, causes and things referred to in this
paragraph are hereinafter collectively referred to as the "Released Matters."
In addition to the above and not as any limitation thereon, Releasors 2, on behalf
of themselves and their successors, heirs and assigns, agree not to make, institute or
prosecute any claim, demand, action or cause of action of any kind whatsoever for
damages, costs, debts, expenses or losses of any kind whatsoever (including, without
limitation, attorneys' fees) based on or arising from the Released Matters or any of
them.
12. Releasors 1 and Releasors 2 specifically waive the provisions of Section
1542 of the Civil Code of the State of California, as follows:
A general release does not extend to claims which
the creditor does not know or suspect to exist in
his favor at the time of executing the release,
which if known by him must have materially affected
his settlement with the debtor.
13.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original but all of which, when taken together, shall constitute
one in the same instrument.

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14.
This Agreement constitutes the entire agreement and understanding of the
parties, with respect to the subject matter hereof and supersedes all prior agreements
or understandings. This Agreement may not be modified, changed or altered, in any
way, except by an instrument in writing signed by the party sought to be charged. In the
event of any action, suit or proceedings between the parties hereto, the prevailing party
shall be entitled to recover the costs incurred or associated therein, including, but not
limited to, reasonable attorney's fees. No waiver of performance of the any of the
terms, provisions or conditions of this Agreement shall constitute a waiver of
performance of any other term, provision or condition of this Agreement, whether past,
present or future.
15.
Each party hereto agrees to execute and deliver any and all other
documents required to effectuate the intentions of the parties under this Agreement.
The parties hereto, by executing this Agreement agree and acknowledge that they have
entered into this Agreement of their own free will, without duress or pressure, and have
been advised of and availed themselves of legal representation in the preparation and
execution of this Agreement and are aware of and consent to the terms contained
herein.
16.
This Limited Cooperation Agreement shall be governed by and construed
under the law of the State of Indiana and is deemed executed on the dates and at the
places listed herein below.
ONEWEST PUBLISHING, INC.,
a California corporation

Dated:______________
at Los Angeles, California.

___________________________
By CHUCK MURPHY, President

Dated:_February 13, 2006
at Indianapolis, Indiana.

CMG WORLDWIDE, INC.,
a Indiana corporation
___________________________
By MARK ROESLER, President

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