By Steve Rummage, Kelli Sager, and Ambika Doran
On Oct. 15, the federal district court for the Central District of California dismissed a lawsuit filed against General Motors by Hebrew University of Jerusalem, which has long claimed to own the postmortem publicity rights of Albert Einstein. The court became the first to recognize a limit on the common law postmortem right of publicity, concluding that the period could not be longer than 50 years—which meant Einstein’s rights expired in 2005, 50 years after his death in 1955.
HUJ’s lawsuit against GM stemmed from an advertisement published in People magazine’s 2009 “Sexiest Man Alive” edition. It depicted Einstein’s face digitally pasted onto a muscled physique, accompanied by the words, “Ideas are sexy too.” Id. at *1. Hebrew University, an Israeli institution, filed suit in Los Angeles, claiming it obtained Einstein’s postmortem publicity rights through a provision in Einstein’s will and that GM had failed to obtain its permission to use Einstein’s image in what HUJ viewed as a “tasteless” advertisement. HUJ’s lawsuit included claims for violation of the New Jersey common law right of right-of-publicity, the California common law and statutory right-of-publicity, and the Lanham Act.
The court dismissed the Lanham Act claim on summary judgment earlier this year. It found, however, that New Jersey would recognize postmortem rights of publicity (although there are no decisions from New Jersey state courts on that issue) and that exploitation during one’s lifetime is not required for rights of publicity to continue after death. The court reserved for trial the issue of whether Einstein’s will actually bequeathed his publicity rights to HUJ. Id.
In pretrial motions, GM asserted that regardless whether HUJ at one time owned Einstein’s postmortem rights of publicity, the rights had expired by the time the advertisement was published. Einstein died in 1955; the ad was published fifty-four years later. Id. HUJ urged the court to find that the duration of the right was indefinite or, in the alternative, that the rights last seventy years after death, analogizing to the duration of rights under federal copyright law. Id. But the court sided with GM, finding that the New Jersey Supreme Court would likely follow the majority of other states in finding that the postmortem right of publicity endures for no more than 50 years after death. Id; see also id. at *8.
In reaching its decision, the court examined the history and scope of publicity rights, noting that “courts may be properly reluctant to adopt a broad construction of the publicity right because of its less compelling rationales than those of other intellectual property rights.” Id. at *4. “Surely,” the court stated, “the personal interest that is at stake [in the right of publicity] becomes attenuated after the personality dies.” Id. at *5. Consequently, “[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.” Id.
The court rejected Hebrew University’s argument that the duration should be the same as for copyrights, noting that “the purpose of [the publicity right] and its underlying policies do not warrant a mechanical application of the Copyright Act’s term of life plus 70 years.” Id. at *5. First, the court found, “the focus of copyright is on recorded creative expressions while the focus of the right of publicity is on the identity and ‘persona’ of a human being.” Id. at *6 (quotation marks, citation omitted). Second, “the protection of copyright is designed to encourage the future creation of works of art, whereas the interest … protected by the right of publicity is usually the byproduct of a different and earlier endeavor,” meaning that copyright provides an incentive that the right of publicity does not. Id. Finally, the court pointed out that Congress extended the copyright duration from 50 to 70 years in part to “harmonize U.S. copyright protection with the protection afforded by countries in the European Union,” which were “political and economic considerations” not applicable to the right of publicity. Id. at *7.
The court found that public policy also favored a limited postmortem right of publicity. Id. As the court explained, “[a]n open-ended right of publicity, or even a postmortem duration longer than 50 years, raises considerable First Amendment concerns and creates a potentially infinite curb on expression.” Id. These concerns are even greater in the modern era of mass communications, making it “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.” Id. Because Einstein’s persona has become “thoroughly ingrained in our cultural heritage,” the court held that given the passage of more than fifty years, “that persona should be freely available to those who seek to appropriate it as part of their own expression, even in tasteless ads.”
The court also dismissed HUJ’s claim under California’s misappropriation statute, following Ninth Circuit decisions limiting the application of the statute to California domiciliaries. Because Einstein was domiciled in New Jersey at his death, California’s right of publicity statute did not apply. Id. at *3.
Hebrew University of Jerusalem v. General Motors LLC, 202 WL 4868003 (C.D. Cal. Oct. 15, 2012). Steve Rummage is a partner and Ambika Doran an associate in the Seattle office of Davis Wright Tremaine LLP. Kelli Sager is a partner in the firm’s Los Angeles office. They were counsel to General Motors in this matter.