Journeys in Legal Spacetime: Duration of a postmortem right of publicity

Earlier this year the Hebrew University of Jerusalem was granted permission by a Californian court to proceed to trial in an action against multinational car manufacturers General Motors (GM) for using Albert Einstein's image in an advert, on the grounds that the University may have inherited the physicist's [and patent examiner, let's not forget] postmortem publicity rights. Last week the court ruled on the issue in The Hebrew University of Jerusalem v General Motors LLC.

Ideas may be sexy, but they
 aren't protected by copyright

Einstein, 'the symbol and embodiment of genius', had a close relationship with the University, established in 1925, and sat on its first Board of Governors along with Sigmund Freud and many other impressive notables (Merpel wasn't alive yet). In 1982, the Estate of Albert Einstein transferred all literary rights and property to the institution as required by Einstein's will, although no right of publicity was expressly mentioned nor had he claimed any monetary compensation for the use of his persona in his lifetime. Jump to November 2009, when General Motors used an image of Einstein in an advertisement for a Terrain vehicle in People magazine. The advert depicted his face digitally pasted onto a 'muscled physique' tattooed with the famous mass-energy equivalence equation and the written message "Ideas are sexy too". In 2010, the University brought suit in California against GM for this unauthorised use of Einstein's image. However, before the University could seek to prove Einstein's intent to transfer a right of publicity at trial, it was first necessary for the court to determine a narrow point of law - what is the duration of a postmortem right of publicity recognised in the common law of New Jersey?

The issue arose due to the operation of the general choice of law principle that a property right is governed by the law of the property owner's domicile. As the right of publicity is a property right and Einstein was domiciled in New Jersey at the date of his death in 1955, the law of New Jersey governed the dispute. However, the question of duration had not been addressed by the courts or legislature of New Jersey, and so the California federal court was asked to rule on what New Jersey's highest court would likely determine to be the postmortem duration of that state's common law right of publicity. 

The court held that the New Jersey Supreme Court would likely find that the postmortem right endures for no more than 50 years after death. The determination was fatal to the claim. Einstein died in 1955, meaning that 2005 was the last year during which the University as rights holder could sue to enforce any right of publicity that it might have inherited.

Why, I hear the IPKat readers ask, did the court decide that the duration was 50 years in New Jersey, when the Californian Civil Code imposes a statutory 70 year limit (Cal. Civ. Code, s. 3344.1)? Well, notwithstanding the choice of law rules, the court sought to avoid an arbitrary ruling and so conducted a balancing exercise of all of the interests at stake, with particular emphasis being placed on the personal interest inherent in the commercial property right of publicity and the need to protect the public's freedom of expression;

• The right of publicity broadly protects the commercial value of a person's identity to exploit, as well as preventing others from appropriating, their name, picture or likeness. As such, it is akin to intellectual property such as trade marks and copyright as being a legally enforceable commercial intangible property right. However, there remains an inherent personal interest in the right, which has its origins in the personal right of privacy: the protection of an individual's interest in personal dignity and autonomy. The personal interests at stake are therefore weakened after the death of the personality;
• Despite copyright and the right of publicity being similar in requiring an act of creation, the distinguishing factors pointed away from a mechanical application of the current 70 year postmortem term for copyright protection. First, the right of publicity protects against personal and dignitary harms, whereas copyright protects against the reproduction, performance and display of recorded creative expressions; Secondly, the interest sought to be protected by the right of publicity is usually the byproduct of a different and earlier endeavour, whereas the protection of copyright is designed to encourage the future creation of works of art; Thirdly, the reasons for the 1998 extension of the federal Copyright Act to protect works for life plus 70 years (increased from 50 years) were specific to copyright protection and distinct from underlying policies common to copyright and a right of publicity: to harmonise the US and EU approaches to copyright protection and to promote the interests of the American entertainment industry;
• The slight majority of states with statutory rights of publicity (courts in states that recognise a common law right have yet to rule on the issue) limit the duration to 50 years or less: 'Although this does not provide overwhelming support for such a length of time, it does tip the balance slightly in that direction'. [Tennessee unusually allows the right of publicity indefinitely, as long as the persona has commercial value, luckily for Mr Jack Daniels].

The court found that the overarching public policy concerns in enforcing IP rights (to balance an individual's right to benefit from their creative endeavours and the public's freedom of expression) extended to the right of publicity, and that it was likely that the New Jersey Supreme Court would balance these interests when determining the duration of the right. Relevant freedom of expression considerations included the 'potential pitfalls' that a postmortem duration longer than 50 years would potentially create such as an infinite curb on expression, and a decrease in the value of copyrighted works, such as photographs, by pitting one form of protected property against another.

The court concluded that Einstein's 'persona has become thoroughly ingrained in our cultural heritage. Now, nearly 60 years after his death, that persona should be freely available to those who seek to appropriate it is part of their own expression, even in tasteless ads'.

Of particular interest was the discussion of the impact of the 'dizzying explosion in the tools of communication' on the protection of rights such the right of privacy, the right of expression and the right of publicity:

'In the 57 years since Albert Einstein died, the means of communication have increased and so has the proclivity of people to use them frequently...New devices and platforms have been developed, including smart phones, personal computers, social networks, email, Twitter, blogs, etc. These technologies have caused a swift and dramatic, but still developing, impact on ordinary life. It has become a truism that their speed, their accessibility, and their popularity appear to have changed social norms regarding privacy and public expression. But 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? The Court does not profess to have answers to these questions, but what is clear is that since the full impact of these rapid changes remains uncertain, 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'. 

What, then, does the future hold for the right of publicity? And has the development of communications technology really impacted the scope of the right so materially? Seeing as this is the second post over the past week or so where this Kat has had the pleasure of dipping her whiskers into the US legal principles relating to publicity rights (see here), she suspects that a jurisprudential wormhole has sprouted up that results in contemporaneous cases raising issues as to the impact of technology on intellectual property and associated rights existing in copyright's penumbra. Perhaps the answers are on the other side...all she needs to do is find the entrance.