In the recent decision The Hebrew University of Jerusalem v. General Motors LLC, the US District Court of the Central District of California ruled that Albert Einstein’s publicity rights  now belong to the public domain given that more than 50 years have passed since his death in 1955.

According to the facts of the case, General Motors (“GM”) used an image of Einstein in an advertisement in November 2009 in which Einstein’s face was digitally pasted onto a muscled physique with the catchphrase “Ideas are sexy too.” The Hebrew University of Jerusalem (“HUJ”) claimed ownership of Einstein’s publicity right under Einstein’s will. As a beneficiary, HUJ would have the exclusive control of the exploitation of Einstein’s name and likeness. HUJ brought an action for unauthorized use of Einstein’s image. It is important to note that the will is silent regarding the devise of any right of publicity, and Einstein did not claim or receive any monetary compensation for the use of his persona during his lifetime.

In March 2012, the Court allowed HUJ to proceed to trial in order to prove that GM had violated Einstein’s, and consequently HUJ’s right. HUJ sought a ruling as to what New Jersey’s highest court would likely determine to be the postmortem duration of that state’s common law right of publicity.

Einstein died while domiciled in New Jersey. Under Cal. Civ. Code §946, California's postmortem right of publicity statute is limited to California domiciliaries. Thus, the Court looked to New Jersey's right of publicity law. Under Cal. Civ. Code §3344.1(g), the duration of California’s statutory postmortem publicity right is 70 years. In the state of New Jersey, the issue of duration was discussed only in the case Estate of Presley v. Russen. However, the court did not decide the issue. The court in Presley found that the state legislature was to determine the question of duration and that the federal Copyright Act’s “life plus 50” could be of assistance.

In this case, Judge Matz concluded that “the New Jersey Supreme Court would likely find that the postmortem right of publicity endures no more than 50 years after death”. According to the Court’s reasoning, a maximum of 50 years postmortem duration was found to be “a reasonable middle ground” for a deceased celebrity’s heirs to make use of the right of publicity and benefit from it. Further, Judge Matz found that the Court’s ruling “aligns with the majority of current state statutes limiting the right’s postmortem duration”. Finally, the Court found that its decision properly balances the “meaningful enforcement” of a celebrity’s right of publicity and “the public’s interest in free expression”. Judge Matz denied HUJ’s motion and dismissed the complaint as untimely filed.

In Canada, the right of publicity can be found under the term “tort of appropriation of personality” defined in Krouse v. Chrysler Canada Ltd. Under Canadian law, celebrities receive a preferential treatment, as opposed to ordinary people, since their rights are considered to be property that can be licenced or transferred, and that is descendible to the estate after death. As Prof. Vaver puts it in the second edition of his Intellectual Property book: "[d]eath brings no respite: fame survives the grave”.  Former IPilogue Editor Anna Shahid posted on that issue in 2009. Quoting the famous decision in Gould Estate v. Stoddart Publishing Co, she concluded:

“[T]he personality rights of an individual survive the individual’s death and allows for his or her heirs to protect the unauthorized use of such rights. It is unclear whether the rights expire after some time has lapsed since the death of the individual. However, ‘it seems reasonable to conclude that whatever the durational limit, if any, it is unlikely to be less than 14 years’”.

Moreover, the Trade-marks Act ss. 9(1)(l) & 9(2)(a) stipulate that if the deceased’s “portrait or signature” is used for trade purposes without the estate’s permission, then legal action may be taken up to thirty years after death. Finally, under the Copyrights Act ss. 14.1(1) & 28.2(1)(b), an author’s works may be protected by its estate from being “used in association with a product, service, cause or institution” until the copyright expires.

The situation changes though when commercial appropriation of personality is considered under the various Privacy Acts in Canada. The statutory right is more limited for celebrities than its common law counterpart, and it dies with the person without being transferable. Like in the United States, personality rights in Canada are limited by public interest values such as freedom of expression. Therefore, the courts always need to strike a balance between those two fundamental rights in order to avoid strengthening one to the detriment of the other.

Albert Einstein, like Marilyn Monroe, now belongs to the public. His persona as the symbol of genius may be freely appropriated and is bound to survive death for many years to come.

Georgios Andriotis is a second year law student at Université de Montréal.