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Fifty Seven years after he died, Albert Einstein’s name and likeness continues to generate about $10 million annually according to Forbes.  Hebrew University has controlled Einstein’s name and likeness for decades, but those rights now are being called into question by a California court.

In 2009, GM ran a four-page advertisement in people magazine under the headline, “Ideas are Sexy Too.”  That add included an artistic rendering of a half-naked Einstein with an “e=mc2” tattoo on his left bicep, shown below.

[caption id="attachment_217" align="aligncenter" width="238"]<a href="https://ipintelligencereport.bakerhostetlerblogs.com/wp-content/uploads/sites/11/2012/03/Einstein-Ad1.jpg"><img class="size-medium wp-image-217" src="https://ipintelligencereport.bakerhostetlerblogs.com/wp-content/uploads/sites/11/2012/03/Einstein-Ad1-238x300.jpg" alt="" width="238" height="300"></a> GM's 2009 "Ideas Are Sexy Too" Advertisement[/caption]

Hebrew University objected and brought a lawsuit in federal court in California, alleging violations of the Lanham Act, California unfair competition law and Einstein’s right of publicity.  After discovery, General Motors moved to dismiss the lawsuit.  Last week, a California Court dismissed all but the publicity rights claims.  GM urged that Hebrew University did not prove that it owned these rights, but Judge A. Howard Matz found that the school <em>might</em> have inherited the famed physicist's publicity rights.  A copy of the order is attached <a href="https://ipintelligencereport.bakerhostetlerblogs.com/wp-content/uploads/sites/11/2012/03/HU-GM-March-16-2012.pdf">here</a>.

Einstein died in New Jersey in 1955, and the two sides did not dispute that the laws of New Jersey.  The Court ruled that while Einstein's will did not explicitly give Hebrew University control of his name and likeness, publicity rights under New Jersey law are governed by the “doctrine of probable intent."  Judge Matz found that "there is a genuine dispute concerning whether Einstein would have intended his right of publicity . . . to be included."  

To maintain control of Einstein’s name and likeness, therefore, Hebrew University will now need to show that an examination of all the circumstances surrounding the execution of the will to figure out exactly what Einstein wanted to happen to his publicity rights.

Hebrew University contends that upon Einstein's death, control of his name and likeness passed to Einstein's stepdaughter Margot, who transferred them to the school in 1982.  According to Judge Matz’s order, Einstein's will, which passed manuscripts, copyrights, and literary property to Margot and later to the Hebrew University, however, the order explains, the will does not expressly mention his rights to publicity nor whether they would survive his death.  Interestingly, the order recognized that no New Jersey state court has yet determined whether publicity rights survive death in New Jersey, though New Jersey federal courts have suggested they do.

Noting the peculiarity of the case, Judge Matz’s order states that both the parties and the court were unable to find a previous New Jersey case "dealing with a situation even analogous to this case."

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What did Einstein Intend?