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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,
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 WL 907497, at *12-14 (C.D. Cal. March 16,
2012) (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)), 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.
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Selz is not engaged herein in rendering legal advice, and shall not
be liable for any damages resulting from any error, inaccuracy, or
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