n October 15, 2012, a California federal judge dismissed Hebrew University of Jerusalem’s (“Hebrew University”) lawsuit against General Motors LLC (“GM”) over the use of Albert Einstein’s image as part of a GM advertisement, holding that Einstein’s publicity rights have expired and now fall in the public domain. Hebrew University of Jerusalem v. General Motors LLC, 10-cv-3790 (C.D. Cal.). United States District Judge A. Howard Matz rejected Hebrew University’s claim that New Jersey common law provides for an indefinite duration of the postmortem right of publicity, or that it alternatively is coextensive with copyright law and lasts for a minimum of 70 years after a person’s death. Instead, the Court ruled that New Jersey common law postmortem publicity rights endure for no more than 50 years after a person’s death. Because Einstein died in 1955, the Court’s ruling means that Einstein’s publicity rights are now in the public domain.
This claim arose out of a one-time use of an image of Albert Einstein’s face digitally copied onto a muscled physique under a 2009 advertisement for a GM all terrain vehicle with the slogan “Ideas Are Sexy Too.” The image was licensed from Getty Images and the ad appeared People Magazine’s Sexiest Man Alive edition. Hebrew University has long claimed to own exclusive control of Einstein’s name and likeness as a beneficiary under Einstein’s will, even though the will is silent regarding the devise of any right of publicity, and Einstein did not claim or receive any monetary compensation for the use of his persona during his lifetime.
In 2010, Hebrew University sued GM in the United States District Court for the Central District of California for trademark infringement, unfair competition, and violations of California’s common law and statutory rights of publicity for wrongly exploiting Einstein’s image. Because California’s postmortem right of publicity statute does not apply to persons that died domiciled outside of California, the Court looked to New Jersey’s right of publicity law, the state of Einstein’s domicile at death. While the District Court granted GM summary judgment and dismissed the trademark and unfair competition claims, it denied GM’s motion as to the right of publicity claims and found it was a question of fact for the jury at trial as to whether Einstein would have transferred his postmortem right of publicity under New Jersey law had he been aware that such publicity rights existed at the time of his death.
Before the case proceeded to trial, Hebrew University filed a motion requesting that the Court find that the duration of the postmortem right of publicity is indefinite under New Jersey common law, or lasts for at least 70 years after a person’s death. GM countered that any New Jersey common law right of publicity would last less than 55 years after a person’s death, and that the case should be dismissed because Einstein died 57 years ago and any postmortem right had expired by the time Hebrew University filed suit.
Judge Matz concluded that the New Jersey Supreme Court would likely limit the postmortem right of publicity under New Jersey common law to endure no more than 50 years after a person’s death. He noted that the New Jersey Legislature has twice declined to enact a statutory postmortem right of publicity, and given the sparse New Jersey case law on the issue, “it is likely that the New Jersey Supreme Court would perceive pitfalls in allowing an unlimited or lengthy term to the right of publicity.” Comparing the right of publicity to New Jersey’s common law right of privacy, the Court recognized that 50 years was a “reasonable middle ground” to allow a deceased celebrity’s heir to benefit from the right of publicity, while still respecting the “public’s interest in free expression.” Further, Judge Matz noted that the ruling aligns with the majority of current state statutes limiting the duration of postmortem right of publicity to 50 years or less, and also meets Hebrew University’s reasonable expectation of duration at the time it acquired Einstein’s rights under the will, given that the Copyright Act was then limited to a 50 year postmortem duration for copyrighted works. Accordingly, Judge Matz ruled that 2005 was the last year Hebrew University could have sued to enforce Einstein’s right of publicity, and dismissed the complaint as untimely filed.
So the icon of a genius, Albert Einstein now belongs to the world. Hebrew University most likely thought it was in friendly territory, asking a California judge to rule on a postmortem right of publicity, but it gambled wrong. Like Marilyn, the courts have now freed these two 20th century icons from the grips of licensing entities.
Filed in: Legal Blog, Litigation, Trademarks and Brands
October 17, 2012