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Intellectual Property

Frankfurt Kurnit Klein & Selz: Federal Court Rejects Albert Einstein Right of Publicity Claim

In rejecting a right of publicity claim by Hebrew University of Jerusalem, which claims to control the rights to Albert Einstein, a California federal court has ruled that the common law right of publicity under New Jersey law has a maximum post-mortem duration of 50 years.  The right of publicity gives an individual the right to control the use of his or her identity for commercial purposes during his or her lifetime and, in some states, for a period after death. 

In Hebrew Univ. of Jerusalem v. Gen. Motors LLC [enhanced version available to subscribers], Hebrew University brought an action based on, among other claims, the New Jersey common law right of publicity against  General Motors for General Motors'' use of an image of Einstein in an advertisement for the GMC Terrain vehicle.  The advertisement, which ran in only one issue of People magazine, depicted Einstein''s face digitally pasted onto a heavily-muscled man, in conjunction with the written message "Ideas are sexy too."  After the court''s earlier decision permitting plaintiff to proceed to trial to attempt to prove that Einstein would have transferred his right of publicity had he been aware that such a right existed at the time of his death and that defendant had violated such right, see Hebrew Univ. of Jerusalem v. Gen. Motors LLC, 2012 U.S. Dist. LEXIS 36048, at *12-14 (C.D. Cal. March 16, 2012) [enhanced version available to subscribers] (applying New Jersey common law because Einstein was domiciled in New Jersey at the time of his death in 1955), plaintiff brought a motion seeking a finding that the duration of the post-mortem right of publicity is indefinite under New Jersey common law or, in the alternative, lasts for 70 years after death.

Predicting how the New Jersey Supreme Court would answer the question of whether plaintiff can enforce Einstein''s right 55 years after his death, the court concluded that the New Jersey Supreme Court would likely find that the post-mortem right of publicity under New Jersey law endures for no more than 50 years after death.  Reviewing the one decision from New Jersey that touched on the postmortem right, (Elvis Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981) [enhanced version available to subscribers]), other states'' common and statutory right of publicity laws (a majority of which limit the duration of the post-mortem right to 50 years or less), copyright considerations, and general public policy balancing individuals'' rights with freedom of expression, the court found that a maximum 50 year post-mortem duration would be a reasonable middle ground that is long enough for a decedent''s heirs to take advantage of the decedent''s personal rights.  "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."

The court concluded that nearly 60 years after Einstein''s death, the Einstein 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 denied plaintiff''s motion for summary judgment and requested that defendant file a proposed judgment in accordance with the court''s ruling.

If you have any questions about this ruling or any other right of publicity issues, please contact Chris Chase at (212) 826-5568 or, or any other member of the Frankfurt Kurnit Advertising Group.  



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