Albert Einstein Ripped Or Ripped Off?

People are funny. We react to circumstances in all kinds of ways. For example, if someone superimposed my face on a body like the one above I would have no problem with that. But Hebrew University – the beneficiary of Albert Einstein’s estate — didn’t like it at all. Go figure.

The photo was used in a GM ad for the 2009 Terrain. HU brought suit, contending that GM violated Einstein’s right of publicity. But recently, a federal judge in California sided with GM.

Einstein lived in New Jersey when he died in 1955. So the federal court applied New Jersey law. Unlike other celebrity-friendly states like California, New Jersey doesn’t have a statute governing how long a right of publicity lasts after the subject’s death. So the court was left to interpret New Jersey’s case law.

HU argued that the time should mirror the time that a copyright lasts — 70 years after the author’s death. After all, both property rights protect an act of creation: creating a sculpture versus cultivating a persona. But, according to the court, there are key public policy reasons to treat the right of publicity differently.

For one, a right of publicity is intensely personal and a byproduct of earlier public successes. (At least that used to be the case before the Kardashians exploded on the scene.) Plus, copyrights exist to encourage and foster creativity. Celebrities arguably won’t stop singing, acting, and creating simply because their name and face won’t be protected after they’ve died. (Although, see the Kardashians.)

The postmortem right of publicity must strike that delicate balance between what’s reserved for the owner and what’s left for the public. According to the court, the right of publicity could censor “significant expression by suppressing alternative versions of celebrity images that are iconoclastic, irreverent, or otherwise attempt to redefine the celebrity’s meaning.”

The court found that fifty years to be an appropriate balance of the individual’s and public’s interests. After that much time has passed, it becomes less likely that the use of persona would be perceived as sponsorship or endorsement – but affords some meaningful protection of the individual’s rights. Which means we could be seeing the Kardashians for a long, long time.