January 31, 2014

INTELLECTUAL PROPERTY LAW: Einstein’s Rights of Publicity

Rebeccah Gan

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.

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