Too Late to Protect Einstein’s |Image From ‘Tasteless Ads’


     LOS ANGELES (CN) – General Motors did not violate publicity rights in superimposing the image of Albert Einstein onto a hunky physique for a car advertisement.
     In a tongue-in-cheek promotion for the 2010 GMC Terrain, the automaker paired the digitally altered image of Einstein with the slogan “Ideas are sexy too.” The ad ran in a single issue of People magazine in November 2009.
     “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,” U.S. District Judge Howard Matz wrote.
     Claiming that it owns Einstein’s right of publicity as a beneficiary under his will, Hebrew University of Jerusalem sued General Motors in 2010 for trademark infringement, unfair competition and violation of California’s right of publicity statute.
     The institution claimed that Einstein, who died in New Jersey in 1955, “would have transferred his postmortem right of publicity under New Jersey law had he been aware that such a right of publicity existed.”
     GM allegedly violated that right by using his image in its ad.
     It asked the court to find that Einstein’s postmortem right of publicity is indefinite under New Jersey law or extends to 70 years after his death, as is the case with copyrights under the federal Copyright Act.
     U.S. District Judge Howard Matz found that New Jersey precedent indicates that the right of publicity extends no more than 50 years after a celebrity’s death.
     “A maximum 50-year postmortem duration here would be 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,” Matz wrote Monday.
     Considering federal copyright law as well as First Amendment issues as they relate to today’s “dizzying explosion in the tools of communication,” Matz reasoned that “it is not yet clear what this should mean for the protection of such rights as the right of privacy, the right of expression and the right of publicity.
     “For example, on balance, should the law increasingly protect people’s right of expression, now that we enjoy so many fora in which to broadcast our views? Similarly, should the law value the right of privacy less than before, given that many social media devotees, especially young people, are said to have little compunction about revealing intimate information about themselves? Conversely, should the law afford celebrities greater rights in controlling publicity about themselves, to protect against what appears to be a growing tendency of people to not just exalt but even to exploit the fame and celebrity of others?” (Emphasis in original.)
     Matz concluded: “it would be imprudent to issue any ruling that strengthens (or at least lengthens) one right that of the right of publicity to the potentially significant detriment of these other rights.”
     With that in mind, Einstein’s image “should be freely available to those who seek to appropriate it as part of their own expression, even in tasteless ads,” the ruling states.
     “Although the New Jersey Legislature has considered at least two bills that would create a statutory right of publicity, it has thus far not seen fit to enact such a right. There is nothing stopping HUJ from petitioning the New Jersey Legislature to pass a statute, with retroactive applicability, that would create a definitive postmortem right of publicity with the extended duration that HUJ seeks here.”

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