A California federal district court recently ruled that General Motors could use Albert Einstein's image in a car advertisement because it has been too long since Einstein's death for anyone to limit the use of his likeness. General Mills (GM) placed Albert Einstein's face on a muscular body with an "e=mc2" tattoo in a 2009 ad for its GMC Terrain SUV. Hebrew University of Jerusalem filed a lawsuit and argued that GM used the image without authorization in violation of Einstein's right of publicity. (The university also claimed to control Einstein's rights of publicity because it was named as a beneficiary in his will). The court disagreed, finding that Hebrew University could only bring a lawsuit over an unauthorized use of Einstein's image until 2005, 50 years after Einstein's death. The court noted that this was the limit on copyright law in 1982, when the university acquired the right of publicity for Einstein, and stated this duration is 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." The court declined to apply the 70-year postmortem right of publicity granted to an individual's beneficiaries under California law, reasoning that California law was irrelevant because Einstein never lived there. The court further noted that the humorous nature of the ad made it unlikely for a reasonable viewer to infer that Einstein, or the owner of his right of publicity, endorsed the GMC Terrain.
Tip: Notwithstanding this decision, you should consult with counsel before incorporating Einstein's name or likeness into your advertising.