“The only reason for time is so that everything doesn’t happen at once,” Albert Einstein once quipped. But Einstein was not commenting on law, where the passage of time has a different significance—and now has resulted in a California federal judge ruling that Einstein’s right of publicity, which was claimed by the Hebrew University of Jerusalem (“HUJ”), has expired. We covered an earlier ruling in this case a few months ago. Now, the Court has dismissed the lawsuit brought by HUJ against General Motors for the unauthorized use of Einstein’s likeness in the following printed advertisement which appeared in People Magazine’s:
The ruling (available here) required significant creativity and speculation about the state of the law. That is because U.S. District Judge A. Howard Matz, a federal judge presiding in California, was forced to consider the term of the post mortem right of publicity under New Jersey law—an issue which apparently had never been specifically addressed by courts in New Jersey or the New Jersey legislature. Commenting on the unique set of circumstances, Judge Matz stated at oral argument (reprinted in an article in Law360) in August: “I am expected, technically, to predict what the New Jersey Supreme Court would determine to be the duration of the common law right of publicity in New Jersey.” And ultimately, that is precisely what he did.
Forbes’ 2011 list of Top Earning Dead Celebrities indicates that Einstein was the seventh highest earner at approximately $10 million. Interestingly, Marilyn Monroe was the third highest earner in 2011, at $27 million, though a court recently held that her right of publicity expired under New York law (see our article).
GM challenged whether HUJ had attained any rights. GM also argued that even if HUJ attained any rights, they expired. HUJ argued that the publicity rights lasted indefinitely. Alternatively, HUJ sought to have California law applied: the California statute provides that the right of publicity lasts for 70 years after death.
In rejecting HUJ’s theories, the Court found that “it is likely that the New Jersey Supreme Court would perceive pitfalls in allowing an unlimited or lengthy term to the right of publicity.” Thus, Judge Matz ruled that the right of publicity in New Jersey should last 50 years after a person’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.”
The obvious question is: why 50 years? Although at first blush the 50 year term may seem arbitrary—and ultimately HUJ may so allege on appeal—Judge Matz did it by looking to other areas of law. Judge Matz analogized the policies at issue in this case with the competing policies under the First Amendment and the Copyright Act. As Judge Matz explained his reasoning as follows: “[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,” Judge Matz said. “Absent a legislative directive to the contrary, to extend the right of publicity beyond a half century would be inconsistent with the court’s responsibility to balance all of the interests that are at stake.”
The term of copyright protection in 1982—which is when Einstein’s rights were allegedly transferred to HUJ—was the life of an author plus 50 years. The Court also looked to other states and found that of the five other states (South Carolina, Utah, Michigan, Connecticut and Georgia) that have a common law right of publicity that survives death, none have articulated a length of the right. The Court also noted that the thirteen states with statutory rights of publicity surviving death have varied terms: 20 years (Virginia), 30 years (Pennsylvania), 40 years (Florida), 50 years (Texas, Illinois, Nevada and Kentucky), 60 years (Ohio), 70 years (California), 75 years (Washington), 100 years (Indiana, Oklahoma) and Indefinite, as long as rights continue to have commercial value (Tennessee).
As Judge Matz noted at the argument, he was venturing into virgin territory. As such, the decision may be attacked on a variety of grounds, including whether the analogies to copyright law and/or other state laws are the most appropriate way to determine this issue as well as challenges to whether the analysis was correct. An appeal would go to the Ninth Circuit—the same Court that just a few weeks ago declared that found that Marilyn Monroe’s right of publicity expired.