24 October 2012

Big Al's Afterlives

In The Hebrew University of Jerusalem v General Motors LLC [PDF] the US District Court (Central District of California) has held that Albert Einstein's postmortem publicity rights have expired.

The judgment follows permission by the court earlier this year for the University, as claimed holder of the rights, to proceed to trial against GM for the car manufacturer's use of Einstein's image - tanned, bare-chested, jeans and underdaks - in an advertisement.

The University gained the claimed rights in 1982 when Einstein's estate transferred all literary rights and property as required by Einstein's will. That will did not expressly refer to publicity rights and he does not appear to have gained any royalties from his persona although no right of publicity was expressly mentioned nor had he claimed any monetary compensation for the use of his persona during his lifetime.

The Court initially considered the duration of a postmortem right of publicity - a property right - recognised in the common law of New Jersey (Einstein's former domicile), as distinct from rights under Californian statute law (Cal. Civ. Code, s. 3344.1). I have noted elsewhere that some US states - primarily those with a strong film industry - have recognised personality/publicity rights through statute law. Most recognition under statute expires after 50 years; Californian protection ceases after 70 years and protection in Tennessee under the 'Elvis Law' is famously in perpetuity.

In the current dispute the duration of those rights in New Jersey has not been addressed through cases such as Estate of Presley v. Russen, 513 F. Supp. 1339, 1355 (D.N.J. 1981) and McFarland v. Miller, 14 F.3d 912, 917 (3d Cir. 1994). In Presley the federal district court held that “Elvis Presley’s right of publicity survived his death and became part of Presley’s estate” but indicated that the state legislature should determine the duration of the right question and that the national copyright statute (term of life plus 50 years) could provide guidance.

The Californian court was asked to identify what New Jersey's Supreme Court would determine as the postmortem duration under its common law right of publicity. The Californian statute restricts the right to California domiciliaries, indicating that "If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile". In that respect note the recent decision in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 1000 (9th Cir. 2012).

Bad news for the University, with Judge Matz holding that the Supreme Court would probably find that the right expired 50 years after the person transited to the great beyond. Matz held that
unless sound public policy and the weight of authority establish otherwise, it makes no sense to apply the California statute’s 70 year postmortem durational limit — which is part and parcel of the substantive right — to a right arising solely out of the New Jersey common law, and there is no legal principle requiring this Court to do so
The court found that the public policy objectives regarding intellectual property extend to personality rights. Accordingly it was probable that the NJ Supreme Court would seek a balance between community (eg freedom of expression) and personal interests in determining duration of the right in that state.

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
The Court endorsed commentary regarding
the need “to avoid descendants or heirs unto the nth generation reaping the commercial rewards of a distant and famous ancestor, a ‘favored bloodline’ concept out of step with a society that has abolished hereditary titles” and that at some point, the interests of free speech outweigh the interests of the heirs and “the person’s identity should enter the public domain as a part of history and folklore”.
Excessive postmortem duration would potentially restrict expression, to an inappropriate degree.
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.