from the finger-in-the-wind dept
A couple years ago, we wrote about Hebrew University suing GM for using an image of Albert Einstein in an ad without first getting permission (i.e., paying up). Einstein left his assets to Hebrew University (of which he was a founder and a big supporter), and Hebrew University has taken that to an extreme, more or less arguing near complete ownership over Einstein’s likeness, and has been ridiculously aggressive in trying to enforce those rights — to the point of tricking print shops into printing Einstein images, only to threaten them with lawsuits. All this despite the concept of publicity rights barely even existing in Einstein’s time, and no indication that he cared one way or the other about such things.
Hebrew University came up short in the GM case recently, as the district court rejected the publicity rights claim — but for bizarre reasons. Part of the issue is that publicity rights are both relatively new and are a part of state law (where they exist), meaning they differ from state to state. And, a big issue is whether or not they apply after death. In some states they do. In some states they don’t. In others… the law doesn’t say. That’s the case here, where the publicity rights law in question was New Jersey’s (where Einstein resided when he died) — and it’s just common law, as opposed to actual regulations. Thus, there just isn’t any clear statement in terms of publicity rights after death, since there’s no actual law on the books. So what did the court do? It just went ahead and decided randomly that publicity rights do live on after death,
but just for 50 years. Why 50? Well, for one reason, it’s one more than 49 and one less than 51.
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 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.
Actually, the defense of the 50 number is even more bizarre. The judge looks to copyright law — in part because Hebrew University argued that copyright’s “life plus 70 years” made sense. The judge, used some of that — saying copyright was a good measuring stick, but rejected the 70 years after death, because at the time Hebrew University got the rights (1982), the copyright term was 50 years after death — so the judge used that as the base. Huh? First of all, copyright and publicity rights are entirely different things, for different purposes, designed to deal with different issues, and coming from different legal concepts. They come out of entirely different legal theories. Mixing and matching them makes no sense. Even then, if we accept the judge’s thinking that we should go with the length as of 1982, it still doesn’t make much sense. Since he’s basing this (for reasons we still can’t fathom) on copyright length, it seems worth pointing out that copyright term extension (thank you Sonny Bono) took everything to 70 years… retroactively. So works created in 1982 get life plus 70 anyway. So, the life plus 50 is supported by… nothing.
The judge tries really hard to make the case that there are enough similarities between copyright and publicity rights for this arbitrary number to make sense, but it’s a really strained argument:
There are certain similarities between the goals of copyright and those of the right of publicity. In a sense, both rights evolve from an act of creation, whether it is the creation of a “work” such as a writing or the creation of a cultivated persona. These acts of creation are the product of an individual’s choices and self-expression.
But that’s not true, even if he cites some other courts making the similarly baseless claim. Copyright is federal law designed for the “promotion of the progress.” Publicity rights are this quasi-restriction that has really only appeared in the last few decades, and seems much more similar to trademark than to copyright. That’s because it’s more about avoiding having the public think the person in question “endorsed” a product when they did not. That’s completely unrelated to copyright. The real culprit here is the ridiculous lumping of completely different concepts into the “intellectual property” bucket. Lazy judges are saying “well that’s intellectual property and that’s intellectual property, so they’re analogous.” Even when they’re not. At all. The judge quotes a bunch of courts who make really really wrong statements. For example, the Zacchini case, where a judge argued that publicity rights are “closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation.” Again, though, that’s not true. The “reap the reward” part (in both cases) is the means, not the end. But the end point in both cases is entirely different. Frustrating that judges could get something so simple so wrong.
The judge notes some differences between publicity rights and copyright, but just lists out some (though, certainly not all — or even the major) differences, and leaves it at that. He then just looks at other states, and how they handle the term of publicity rights, and decides that 50 years fits within the reasonable range, and that since we’re (just) past that, Einstein’s “persona should be freely available to those who seek to appropriate it as part of their own expression, even in tasteless ads.”
Well, I agree with that last part, at least. But the whole life-plus-50-years rationalization sets a random precedent based on a judge’s fabrication — and that seems problematic.