The Lively Jurisprudence of Dead Celebrities: Albert Einstein, New Jersey, and the Post-Mortem Right of Publicity

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Will your image live longer than you do? Artists, celebrities, and other creatives often invest substantial time and effort cultivating a personal brand image, and most likely anticipate its longevity.

The law recognizes a person’s right to profit from this investment by preventing third parties from “free riding” on a famous individual’s name or likeness. A majority of states recognize this “right of publicity,” but vary as to whether this right should outlast its initial rightsholder and for how long.

In some, like New York, the right is extinguished with the death of the individual. But in others, including California, the right of publicity constitutes personal property that can be passed on to ones’ heirs.

How long should an heir expect to control the inherited value of a celebrity’s image? Some state statutes set explicit time frames. For example, in California, where Hollywood has a stake in protecting personal images, the Celebrities Rights Act allows holders of publicity rights to sue for infringement for up to 70 years after the personality’s death.

This corresponds to the protection copyright law currently affords to creative works. In contrast, fame in Virginia is short-lived; its law bars right of publicity actions commenced more than twenty years after the individual’s death. One wonders if this variation reflects a difference in the perceived half-life of a Hollywood star’s commercial image versus that of a beltway politician.

Most states follow a common law approach and have allowed courts to decide the duration of the post-mortem right. But not all state courts have had the opportunity to do so. This is the case with New Jersey; its post-mortem right of publicity was recently the subject of a highly publicized lawsuit brought in California by the Hebrew University of Jerusalem against General Motors.

The case began with a single GM ad in People Magazine’s 2009 Sexiest Man Alive edition. The ad, for GM’s 2010 Terrain vehicle, featured a photo of Albert Einstein’s head digitally grafted onto an extremely athletic physique. GM captioned the image with the slogan “Ideas Are Sexy Too,” playing with the theme of the magazine and marketing its brand as smart and seductive.

The ad caught the attention of Hebrew University, which had obtained “all [of Einstein’s] publication rights … of any and every kind whatsoever” from Einstein’s secretary and stepdaughter who held them in trust.

Even though Einstein had not expressly devised his “publicity rights,” the University had leveraged the Einstein gift into an $18 million licensing program by attracting dozens of high-profile corporations like Apple, Panasonic, and Warner Bros. which sought to trade on the genius’ name and likeness.

By using Einstein’s face without a license, the University alleged that GM falsely implied an endorsement and undermined the University’s legitimate business interests in the famous relativist’s publicity rights.

The case, Hebrew University of Jerusalem v. General Motors LLC, was filed in 2010 in the U.S. District Court for the Central District of California. Still, New Jersey law would be applied to Hebrew University’s claim because the application of post-mortem publicity rights is determined by the place of death of the rightsholder. Einstein died in Princeton, NJ in 1955.

GM argued that the University had no basis to restrict its use of Einstein’s famous visage. First, GM noted, no New Jersey state court has recognized a post-mortem right of publicity. Secondly, it argued, even if New Jersey were found to recognize a surviving right in the deceased’s image, it should be conditioned upon his or her having commercially exploited that publicity right while alive.

The District Court rejected both arguments. Citing a history of cases and treatises, Judge Matz wrote:

There are sound … 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. … [T]here have been famous people who … renounced wealth or declined to pursue it, and … 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 what they cared most about … [D]eath should not deprive them of the very attribute that they intended to leave as their legacy.

This evocative language clearly sets forth grounds for observing the legacy of a famous individual’s image, perhaps also for limiting the financial exploitation of it to the individual’s heirs. (One also wonders if Judge Matz isn’t giving grounds potentially for an heir to complain that a joint rightsholder or licensee is not accurately portraying the deceased’s image in its exploitation.)

The question of how long such a personal property right ought to be enforceable is not self-evident. No state court in New Jersey had considered the issue. (Although the New Jersey legislature twice considered a 70-year term as part of the “Celebrity Image Protection Act,” that bill failed on each occasion.) In the absence of New Jersey authority to determine the duration of the post-mortem right, the District Court in California considered the nature of the right itself, the laws of sister states, and public policy.

Judge Matz noted that the right of publicity developed, historically, within the context of privacy rights, as a means of guarding against invasion of privacy and protecting personal dignity.

Over time, right of publicity jurisprudence moved from the privacy framework in which it originated and, as its commercial value grew, became more aligned with intellectual property rights, which protect against unjust enrichment or consumer deception through the infringement of creative “intangible” property.

Major legal treatises, such as the American Law Institute’s Restatement (Third) of Unfair Competition, “codify” this contemporary understanding of the right of publicity. Because New Jersey courts generally align with the Restatement, the court in California determined that New Jersey would likely follow an intellectual property-type approach as well, perhaps analogous to trademark or copyright law.

From a trademark perspective, the question then becomes: how long does a person’s name, image or likeness function as a signifier of goodwill? The court suggests that this issue involves a test familiar in advertising and trademark law: would a viewer of a famous name, image or likeness infer that the celebrity, or his or her heirs, endorsed the product to which it was attached?

The likelihood of such an inference diminishes after death, but it does not disappear. In fact, the success of Hebrew University’s licensing program demonstrates the continued viability of Einstein’s image as a signifier of genius, science, and education.

The court, observing that it was unlikely any viewer of the ad would reasonably infer that Einstein (or his heir) was endorsing the GMC Terrain, made an assessment that the duration of the post-mortem right of publicity ought to be no more than 50 years. (The decision appears to leave open the possibility that the viewer’s assessment might have been different if the ad had been for a fountain pen.)

Taking a copyright perspective, Hebrew University argued that the post-mortem right should be coterminous with the current Copyright Act, which provides for 70 years of protection after death.

The court disagreed for a number of reasons. First, under this theory, the University could have initially expected no more than 50 years of post-mortem protection because, in 1982 when it acquired Einstein’s publicity rights, the 1976 Copyright Act only afforded 50 years of protection after the death of the originator.

Secondly, the court noted that copyright and publicity rights emerge out of different legal regimes and serve different goals. Grounded in constitutional language, copyright promotes “the useful Arts” by rewarding creatives (and their heirs) with a limited monopoly over the fruits of the artist’s labor.

On the other hand, the right of publicity, for all its commercial appeal, still has a far more personal orientation, protecting the identity of an individual and the general interest in disassociating oneself from personally offensive products or ideas. Because of these differences in origin and function, the court concluded that, aside from recognizing what the University might have expected, it had no reason to track the duration of publicity rights with that afforded to copyright holders.

For the District Court, all of this pointed to a 50-year post-mortem right in New Jersey. This particular length of time aligns with the laws of the other states. Of the thirteen states with statutes expressly providing a post-mortem right of publicity, a majority, seven, limit their duration to 50 years or less.

Further, in the other states where the right has developed at common law, none has yet addressed the issue of when the right ought to expire because most of the actions have been filed within a relatively short time after the testator’s death.

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“I belonged to the public and to the world”

By addressing, at some length, the nature, purpose, and national application of the post-mortem right of publicity, the District Court sought to avoid the appearance of imposing an arbitrary limitation on the enforcement of this right.

Still, the arbitrariness lies in the patchwork of state authority that allows Einstein’s heirs to enjoy 50 years of publicity rights after his death in New Jersey, while Marilyn Monroe’s image passes immediately into the hands of the public because she lived in New York at the time of her death.

The Balkanized enforcement of this “right” is certain to give headaches to publishers and other distributors that wish to communicate widely over an environment geographically divided in its approach. For example, in Milton H. Greene Archives Inc. v. Marilyn Monroe LLC, the Ninth Circuit recently rejected the claims of Monroe’s heirs to a right of publicity in her enduring image because, at the time of her death, her executors (seeking advantageous tax treatment) insisted that she was domiciled in New York, which does not recognize the right posthumously.

But, perhaps this is how she would have intended it to be. After all, contrary to what Monroe LLC might wish, the American icon herself said “I knew I belonged to the public and to the world, not because I was talented or even beautiful, but because I had never belonged to anything or anyone else.”

The post-mortem issue will be taken up again soon with an appeal to the same circuit court of a Washington judge’s decision with respect to Jimi Hendrix’s image in Experience Hendrix, LLC v., LTD which found that state’s post-mortem right of publicity laws to be unconstitutional on full faith and credit and dormant commerce clause grounds.

As with the Marilyn Monroe case, the forum-shopping of the Hendrix estate for a potentially more lucrative domicile for its decedent prompted the court to draw a line. For those interested in the images of dead physicists and other famous people, the variation among the states promises to keep this jurisprudence lively.

Lizbeth Hasse

Lizbeth Hasse

Lizbeth Hasse is the founder of Creative Industry Law. Her practice encompasses intellectual property, media, entertainment and business counseling for corporate and individual clients. She is also a neutral expert in these areas, negotiating and resolving IP, business and media matters.
Lizbeth Hasse

About Lizbeth Hasse

Lizbeth Hasse is the founder of Creative Industry Law. Her practice encompasses intellectual property, media, entertainment and business counseling for corporate and individual clients. She is also a neutral expert in these areas, negotiating and resolving IP, business and media matters.