INTELLECTUAL PROPERTY LAW: Einstein’s Rights of Publicity

Vol. 31 No. 1

By

Rebeccah Gan (rebeccah.gan@gmail.com) is of counsel at Young & Thompson in Alexandria, Virginia. She would like to thank Oron Gan and Jennifer Coles for their valuable assistance with this article.

What are the expectations of privacy in our oversharing society? In other words, the personal may be political, but is it still personal? It was precisely these stretched social norms of privacy and public expression that the U.S. District Court for the Central District of California tackled in the context of a right of publicity case involving the estate of Albert Einstein.

Sexiest man [not] alive. When the public pictures Albert Einstein, they likely conjure up a shock of white hair; soft, avuncular features; a wooly, caterpillar mustache; or perhaps a decidedly European three-piece suit. In November 2009, consumers got another take on Einstein, courtesy of a centerfold advertisement in People magazine’s “Sexiest Man Alive” issue, by way of General Motors (GM). This Einstein bore the chiseled physique and baggy jeans of a hip-hop icon, form-fitting white briefs protruding high over the waistband, and a muscular forearm tattooed with “e=mc2.” GM, marketing its 2010 Terrain crossover vehicle, juxtaposed its reenvisioned Einstein with the tagline “Ideas are sexy too.”

Hebrew University of Jerusalem (HUJ), heir to Einstein’s intellectual property rights, was not amused. It sued GM for this unauthorized use of Einstein’s image, alleging violation of HUJ’s right of publicity of a deceased personality under California Civil Code section 3344.1, and violation of HUJ’s common law right of publicity, as well as unfair competition under Lanham Act § 43(a) and the California Business and Professions Code.

GM moved for summary judgment, asking the court to answer the following: (1) whether there is a postmortem right of publicity in New Jersey; (2) whether establishing any such right is dependent on the decedent’s lifetime exploitation of his or her right of publicity; (3) whether there was evidence of record that Einstein himself had exploited his right of publicity; and (4) assuming that Einstein had a postmortem right of publicity, whether HUJ had inherited this right by virtue of Einstein’s will.

Postmortem duration of publicity rights. Both HUJ and GM asserted that, because Einstein had never lived in California and was domiciled in New Jersey when he died, New Jersey law, and not California law, controlled on the issue of whether Einstein and/or HUJ had a postmortem right of publicity in the Einstein likeness, and for how long such a right lasted.

Although no New Jersey statute provides for a postmortem right of publicity, and no New Jersey state court had recognized such a right, HUJ asserted that courts applying New Jersey law had consistently upheld postmortem right of publicity claims without requiring a showing that deceased celebrities had exploited their publicity rights during their lifetime. Accordingly, asserted HUJ, even if the court found that Einstein had not sought out fame in his personhood, apart from his scholarship, this should not affect HUJ’s rights in his likeness after his death.

GM acknowledged that New Jersey state courts would recognize a postmortem right of publicity but argued that this right applied only if the deceased had commercially exploited that right during his or her lifetime. Einstein had not himself (said GM) adequately exploited his right of publicity, and thus no postmortem right could be extant. The court sided with HUJ, finding that the New Jersey Supreme Court would not impose a requirement of lifetime exploitation, and denied summary judgment. The court reserved the question of the duration of Einstein’s right of publicity.

HUJ later filed for judgment as a matter of law under Federal Rule of Civil Procedure 50(a), which the court treated as a summary judgment motion. HUJ argued that the duration of the postmortem right of publicity is indefinite under New Jersey common law, or in the alternative that the duration should be 70 years postmortem, consistent with the current federal copyright term. GM argued that Einstein’s right of publicity had expired.

Given that New Jersey courts had not decided the duration of that state’s postmortem right of publicity, the California court was, in essence, required to “predict how the [New Jersey Supreme Court] would decide the issue.” Hebrew Univ. of Jerusalem v. Gen. Motors LLC, 903 F. Supp. 2d 932, 933 n.4 (C.D. Cal. 2012) (citing In re Kekauoha-Alisa, 674 F.3d 1083, 1087–88 (9th Cir. 2012)). The court began its analysis in its own backyard, noting that the duration of California’s statutory postmortem right of publicity is 70 years. However, this 70-year term is limited to California domiciliaries.

The court then turned to Presley’s Estate v. Russen, 513 F. Supp. 1339, 1354–55 (D.N.J. 1981), the only case in New Jersey to ever discuss the question of duration of New Jersey’s right of publicity. The Presley court declined to rule on the duration of New Jersey’s right of publicity, but it did suggest that the New Jersey legislature could look to the federal Copyright Act, which at that time provided for a copyright term of life plus 50 years.

California’s more expansive rights notwithstanding, the court argued for a more limited right of publicity, noting that “[t]he right of publicity originally developed within the array of privacy rights that are considered personal, are based on dignitary interests and [were] not descendible.” While the court acknowledged that now “the right of publicity is widely understood, including in New Jersey, to be akin to intellectual property,” it maintained that, inherently, the right of publicity remains rooted in its protection of “an individual’s interest in personal dignity and autonomy. . . . Surely, however, the personal interest that is at stake becomes attenuated after the personality dies.”

The court leaned on the Restatement (Third) of Unfair Competition for the proposition that “[a] maximum 50-year postmortem duration here would be a reasonable middle ground that is long enough for a deceased celebrity’s heirs to take advantage of and reap the benefit of the personal aspects of the right.”

Critique of publicity rights. Finally, the court argued that significant public policy concerns precluded the application of the “extremely lengthy, 70-year postmortem duration of copyright to the right of publicity.”

First, the right of publicity had the potential to chill First Amendment rights. Next, the court noted that “the dizzying explosion in the tools of communication” that had occurred in the 57 years since Albert Einstein died has “caused a swift and dramatic, but still developing, impact on ordinary life,” impacting the “social norms regarding privacy and public expression.” As a result, the law of privacy was in flux, seemingly imperiled by the “social media devotees, especially young people, [who] are said to have little compunction about revealing intimate information about themselves[.]” It was thus unclear if the law should “afford celebrities greater rights in controlling publicity about themselves, to protect against what appears to be a growing tendency of people to not just exalt but even to exploit the fame and celebrity of others.” Accordingly, it would be “imprudent to issue any ruling that strengthens (or at least lengthens) one right—that of the right of publicity—to the potentially significant detriment of . . . other rights[.]”

Court’s conclusion. Ultimately, the court found that Einstein’s persona was such an ingrained cultural touchstone that, nearly 60 years after his death, others should be able to incorporate Einstein’s persona in their own creative expressions, even if these expressions were of the tacky or tasteless variety. The court concluded that it is unlikely that any consumer viewing the “obviously humorous ad” could have reasonably inferred that Einstein and/or HUJ was endorsing GM’s 2010 Terrain, some 54 years after Einstein’s death.

ABA Section of Intellectual Property Law

This article is an abridged and edited version of one that originally appeared on page 29 of Landslide® magazine, September/October 2013 (6:1).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

Website: americanbar.org/iplaw

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