Madonna, Marlon Brando estate set to settle lawsuit over 'Vogue' performance

By Eriq Gardner, The Hollywood Reporter

Keystone/Getty Images file

Madonna and Marlon Brando.

Madonna is about to resolve litigation with Marlon Brando's estate over using the late actor's image when she performs the song "Vogue" in concert.

The lyrics to the song list out many celebrities ("Greta Garbo, and Monroe / Deitrich and DiMaggio ...") and Madonna has made it a habit to use images of dead celebrities in her set dressing.

But to do so, she arguably needs permission from the estates, and two lawsuits were filed last year over her alleged failure to get it.

CMG Worldwide, an Indiana-based firm that manages the intellectual property rights of many dead stars, sued first, looking to protect Madonna. CMG was in charge of clearing rights for Bhakti Touring Inc, which represented Madonna when she went out on her MDNA world tour after last year's Super Bowl halftime performance.

Madonna was to pay $5,000 each to the estates of James Dean, Jean Harlow, Ginger Rogers, etc., and CMG thought it had agreed to a likewise deal with reps for the Brando estate. But according to a suitfiled in September, Brando's licensing reps increased their demands to $20,000, which represented a problem since it meant that Madonna would then have to also pay $20,000 to each of the other dead celebs thanks to "most favored nation" contractual clauses. It might have made "Vogue" too costly to be performed as intended.

CMG sued, seeking a declaration that Brando's estate and its agents be prevented from bringing any lawsuits against CMG, Bakhti and Madonna for violations of Brando's intellectual property. The plaintiff claimed to have a valid and enforceable contract.

The Brando estate nevertheless returned fire with its own lawsuit against Madonna in October, accusing her of having "intentionally, negligently, and/or willingly used the Brando IP Assets for the purposes of attracting attention to the Tour, to the individual concerts and to the song 'Vogue' itself and for the purpose of enhancing the advertising and marketing thereof."

Suing for misappropriation of publicity rights and trademarks, the Brando estate sought $100,000 for each non-willful use and $1 million for each willful use.

The parties have informed the court that they had reached a settlement in principle but need time to execute the settlement agreement. Terms haven't yet been revealed. The Brando estate is known for its litigiousness in protecting rights, suing in the past over such allegedly exploitative items as motorcycle boots and sofas. The actor, who died in 2004, won Oscars for "On the Waterfront" and "The Godfather" and also starred in such films as "A Streetcar Named Desire," "The Wild One" and "Last Tango in Paris."