The Hebrew University of Jerusalem owns an important archive of material related to an ex-patent examiner from the Swiss Patent Office called Albert Einstein, who is better known – at least outside of IP circles - for reinterpreting the world in accordance with his special and general theories of relativity. Although I have a PhD in Physics from the Hebrew University, I don’t really understand Einstein’s theories, but am sufficiently wowed by them, to see why Einstein has become something of an icon. The Hebrew University of Jerusalem claims to control Einstein’s rights of publicity because it was a beneficiary in his will.
General Motors (a firm that I wrote three patent applications for during a brief spell at Pearl Cohen-Zedek Latzer PCZL earlier this year, but never got paid for) used an altered image of Einstein showing Einstein’s face on a muscular body in a 2009 ad for the GMC Terrain, a sport utility vehicle. with the slogan “Ideas are sexy too”.
The Hebrew University sued, claiming that their post-mortem rights in the person of Einstein were infringed in Los Angeles, where Federal judge Judge A. Howard Matz dismissed the case without trial, in a 16 page ruling where he concluded that it has been too long since Einstein’s 1955 death for anyone to limit the use of his likeness.
The case focused on federal copyright law, a publicity statute in California and common law in New Jersey, the state where Einstein lived in his last years.
The university filed the lawsuit in California, where a state law gives a postmortem right of publicity to people’s beneficiaries for 70 years. However Matz ruled that California law was irrelevant since Einstein did not live here.
The Hebrew University also argued the court should apply federal copyright law, which protects works for 70 years after copyright holders’ deaths. However that term was only extended from 50 to 70 years in 1998.
The District Court Judge ruled that descendants’ right to control someone’s image after his death must be balanced with the public’s right of expression and ruled any rights the Hebrew University had expired in 2005 — 50 years after Einstein’s death — because that was the limit on copyright law in 1982, when the Hebrew University acquired Einstein’s right of publicity. “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,” wrote Matz. Although Copyright law does not govern the right to control publicity, Matz reasoned that courts can use it as a guide.
In court, the university argued that how someone’s image is used is a deeply personal issue and that people have a right to “dignity and autonomy.” “Surely, however, the personal interest that is at stake becomes attenuated after the personality dies,” Matz wrote. He further reasoned that “The obviously humorous ad for the 2010 Terrain having been published 55 years or more after Einstein’s death, it is unlikely that any viewer of it could reasonably infer that Einstein, or whoever succeeded to any right of publicity that Einstein may have had, was endorsing the GMC Terrain.”
New Jersey’s Legislature and courts haven’t addressed exactly how long a postmortem right of publicity lasts in that state. The right is a common law right, that is not found in written statutes. Hebrew University asked the court to find there is an indefinite right in New Jersey law to control publicity, or at least one that lasts for 70 years after someone’s death. The court declined, saying that would set a dangerous precedent and limit First Amendment rights.
Matz considers that Einstein became the symbol and embodiment of genius. His persona has become thoroughly ingrained in 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.
I am inclined to concur with the Judge’s ruling, but consider copyright law too long anyway.