After an image of Albert Einstein appeared in an ad in People magazine’s 2009 Sexiest Man Alive edition, the Hebrew University of Jerusalem filed suit alleging infringement of publicity rights.
The University argued that Einstein transferred his right of publicity to the school through his will and that a General Motors’ advertisement for a 2010 Terrain vehicle that displayed his likeness violated those rights.
The automaker moved for summary judgment, arguing that Einstein’s will and trust did not explicitly give the school control of his name and likeness. Instead, Einstein only bequeathed his “manuscripts, copyrights, publication rights, royalties and royalty agreements, and all other literary property and rights, of any and every kind or nature whatsoever” to a trust that terminated and passed to the University.
Because the will did not explicitly include a right of publicity, such rights did not survive the physicist’s death, GM said.
Interpreting New Jersey law, the state where Einstein was domiciled at his death, California U.S. District Court Judge A. Howard Matz held that the “doctrine of probable intent” – what Einstein intended when he wrote his will – would be determinative.
The court declined to require that Einstein evidence his intent by demonstrating lifetime exploitation of such a right. “There are sound, even compelling, reasons to allow the heirs of a famous decedent to prevent strangers from exploiting his name, image, reputation and identity, even if the decedent himself did not do so during his lifetime. For example, there have been famous people who, during their lifetimes and afterward, renounced wealth or declined to pursue it, and in part for that reason were revered for their modesty and spirituality. Surely a part of whatever happiness and satisfaction they derived from being famous came from the realization that they were setting an example for those closest to them – presumably including their heirs. Such people fairly can be deemed to have ‘exploited’ their fame by developing a persona that showed that what they cared most about was ‘What do I stand for? How will I be remembered?’ Their death should not deprive them of the very attribute that they intended to leave as their legacy.”
Finding that a genuine issue of material fact remained as to Einstein’s probable intent, the court denied the defendant’s motion and directed the parties to brief the issue.
However, the court did dismiss the University’s causes of action for violations of the Lanham Act and California’s unfair competition law. The plaintiff failed to establish any evidence of consumer confusion over the ad, which appeared in just one issue of the magazine, the court said, and did not show “even a tenuous connection between the ‘goods’ at issue.”
“At most, the Terrain draws its value from Einstein’s image only indirectly and remotely; the ad was not for an Einstein product. Einstein is famous largely due to his towering intellect, a point emphasized by the ‘e=mc2’ tattoo sported by the advertisement’s Einstein doppelganger. So what the advertisement suggests is that the Terrain vehicle is endowed with ‘smart’ (but ‘sexy’) features. So what? Einstein = smart. Terrain = smart. Ergo, does Einstein = Approval of Terrain? In short, any link between the ‘hunky’ model in the ad, Einstein’s image and the vehicle is too weak to create a link between two ‘goods,’ ” the court concluded.
To read the opinion in Hebrew University v. General Motors, click here.
Why it matters: The court recognized a postmortem right of publicity in the state of New Jersey despite the lack of a statute or state case law. Instead, the court relied upon federal court opinions in the state to find such a right. In addition, Judge Matz declined to impose a requirement of lifetime exploitation in order to recognize a postmortem right of publicity, noting an Eleventh Circuit decision upholding publicity rights for Dr. Martin Luther King, Jr.’s estate despite his lack of lifetime exploitation.