Federal Court Rejects Albert Einstein Right of Publicity Claim

In rejecting a right of publicity claim by Hebrew University of Jerusalem, which claims to control the rights to Albert Einstein, a California federal court has ruled that the common law right of publicity under New Jersey law has a maximum post-mortem duration of 50 years. The right of publicity gives an individual the right to control the use of his or her identity for commercial purposes during his or her lifetime and, in some states, for a period after death.

In Hebrew Univ. of Jerusalem v. Gen. Motors LLC, Hebrew University brought an action based on, among other claims, the New Jersey common law right of publicity against General Motors for General Motors' use of an image of Einstein in an advertisement for the GMC Terrain vehicle. The advertisement, which ran in only one issue of People magazine, depicted Einstein's face digitally pasted onto a heavily-muscled man, in conjunction with the written message "Ideas are sexy too." After the court's earlier decision permitting plaintiff to proceed to trial to attempt to prove that Einstein would have transferred his right of publicity had he been aware that such a right existed at the time of his death and that defendant had violated such right, see Hebrew Univ. of Jerusalem v. Gen. Motors LLC, 2012 WL 907497, at *12-14 (C.D. Cal. March 16, 2012) (applying New Jersey common law because Einstein was domiciled in New Jersey at the time of his death in 1955), plaintiff brought a motion seeking a finding that the duration of the post-mortem right of publicity is indefinite under New Jersey common law or, in the alternative, lasts for 70 years after death.

Predicting how the New Jersey Supreme Court would answer the question of whether plaintiff can enforce Einstein's right 55 years after his death, the court concluded that the New Jersey Supreme Court would likely find that the post-mortem right of publicity under New Jersey law endures for no more than 50 years after death. Reviewing the one decision from New Jersey that touched on the postmortem right...