A federal judge in Los Angeles, California ruled that an automobile manufacturer’s unauthorized use of an altered image of Nobel laureate Albert Einstein in an advertisement, though “tasteless,” was not unlawful. The Hebrew University of Jerusalem v. General Motors, LLC, No. 10-cv-03790 (C.D. Cal. Oct. 15, 2012). In a case of first impression, the court predicted that New Jersey courts would limit that state’s postmortem right of publicity to a maximum period of 50 years. Because the famed physicist died in 1955, the court held that the claimant could no longer enforce publicity rights related to his image.
EINSTEIN’S WILL. In his last will and testament, Albert Einstein placed all of his “manuscripts, copyrights, publication rights, royalties and royalty agreements, and other literary property and rights of any and every kind or nature whatsoever” in a trust for the duration of the lives of his secretary and his stepdaughter. Upon the death of those individuals, the trust terminated and, according to the will, all remaining undistributed income, literary rights and property passed to The Hebrew University of Jerusalem.
GM’s ADVERTISEMENT. In 2009, General Motors, LLC (GM) used an image of Albert Einstein in an advertisement for its 2010 model of its Terrain sport utility vehicle. The advertisement featured Einstein’s head pasted onto a muscular male upper body, together with the words “Ideas are sexy too.” GM published the ad in one issue of People magazine.
THE DISPUTE. Because GM used Einstein’s image without Hebrew University’s permission, the university filed a lawsuit against the car maker. The university contended that GM had infringed a postmortem right of publicity in the deceased physicist’s image under the law of New Jersey–the state where Einstein resided at the time of his death. That intangible property right, the university claimed, passed to Hebrew University upon termination of the Einstein trust. GM disputed that Einstein intended to transfer his publicity right to the university and argued that, in any event, the Einstein image had entered the public domain. Hebrew University filed a motion for summary judgment, seeing a declaration that Einstein’s publicity right remained enforceable. On October 15, 2012, U.S. District Judge Howard Matz denied the university’s motion and ruled that the Einstein publicity right was no longer enforceable.
THE RIGHT OF PUBLICITY. New Jersey law recognizes a judicially-created right of publicity, which affords an individual the right “to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for commercial benefit.” McFarland v. Miller, 14 F. 3d 912, 918-19 (3d Cir. 1994). It is generally accepted that in New Jersey the right of publicity survives the death of the individual in question.
HOW LONG AFTER DEATH SHOULD THE PUBLICITY RIGHT ENDURE? No New Jersey court has yet ruled on how long the posthumous right of publicity subsists. Without deciding the issue, in Estate of Presley v. Russen, 513 F. Supp. 1339 (D. N.J. 1981), a federal district court in New Jersey suggested that the duration of copyright — at that time 50 years following the author’s death — “may be informative” when considering the duration of New Jersey’s postmortem publicity right. Under California law, the publicity right endures for 70 years after death. See Cal. Civ. Code § 3344.1(g). However, that right does not apply to persons domiciled outside California. See Cairns v. Franklin Mint Co., 292 F.3d 1139 (2002).
In the absence of controlling law, the court concluded that if a New Jersey court were presented with the question, it would rule that the postmortem right of publicity subsists for a maximum period of 50 years. The court observed that modern jurisprudence views the right of publicity as akin to an intellectual property right. However, the Restatement (Third) of Unfair Competition suggests that “courts may be properly reluctant to adopt a broad construction of the publicity right” because of its “less compelling” rationales than those of other intellectual property rights. In the court’s opinion, it would be inappropriate for the New Jersey publicity right to endure as long as copyright protection–currently 70 years after the author’s death. At the time Hebrew University purportedly acquired Einstein’s publicity right in 1982, the posthumous duration of copyright was only 50 years. It was not until 1998 that Congress extended copyright duration by another 20 years. In addition, the right of publicity, the court wrote, is “an intensely personal right” that evolved from privacy considerations, and, as such, is not closely analogous to copyright. Moreover, the court pointed out that no court has yet enforced a common law postmortem publicity right in circumstances where the interval between death and the date of infringement was 50 years or longer. “Indeed,” the court noted, “in most of the cases, the period was 10 years or less.”
BALANCING THE PUBLICITY RIGHT WITH OTHER IMPORTANT RIGHTS. The court found that the fundamental public policy in favor of freedom of expression weighs against a prolonged postmortem publicity right where the legislature has not specifically prescribed an extended duration. The court reasoned that,
An open-ended right of publicity, or even a postmortem duration longer than 50 years, raises considerable First Amendment concerns and creates a potentially infinite curb on expression…. Additionally, … an extended right of publicity may interfere with or decrease the value of copyrighted works, such as photographs, thereby pitting one form of protected property against another.
The court also found that recent technological, business, and cultural developments–including the proliferation of computers, Internet communications, and social networks– have affected privacy and public expression in ways that are not yet fully understood. “[S]ince the full impact of these rapid changes remains uncertain,” the court wrote, “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 these other rights.” Therefore, the court held that “[a] maximum duration of 50 years appropriately reflects the balance between meaningful enforcement of the right of publicity after a famous individual’s death and the public’s interest in free expression.”
AN ICON AVAILABLE TO ALL. The court concluded its reasoning by observing that in the public mind, Einstein is–
… the symbol and embodiment of genius. His persona has become thoroughly ingrained in our cultural heritage. Now, nearly 60 years after his death, that persona should be freely available to those who seek to appropriate it as part of their own expression, even in tasteless ads.
Accordingly, the court concluded that Hebrew University was “not entitled to pursue” Einstein’s publicity right any further. The court directed GM to prepare a proposed judgment to dismiss the litigation.
by Shawn N. Sullivan, Oct. 24, 2012.