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While there are photos of Einstein that are in the public domain (e.g. https://commons.wikimedia.org/wiki/File:Albert_Einstein_(Nobel).png), Einstein ,the person, is not in the public domain. For this reason any use of images of Einstein requires a license and a minimum fee of $2500 (visit einstein.biz for more information). While portraits of Mozart are in the public domain, is Mozart (the person) in the public domain? And if he is, is it legally safe to reuse portraits of Mozart commercially in, for example, video games?

Edit 1: I was told that Einstein (the person) is not in the public domain by a representative of Einstein.biz; and, therefore, a license would be needed to use any image of Einstein. However, as Nate Eldredge pointed out, it is probably personality rights that protect Einstein (the person) rather than copyright. In other words, saying that "Einstein is not in the public domain" is incorrect terminology. The correct terminology would be that the "personality rights of Einstein have not expired".

I am primarily interested in knowing whether photographs of portraits of Mozart (that are in the public domain) are open for commercial use in Germany.

  • The notion of public domain is specific to copyright, and I don't think copyright is the concept you're looking for here. People can't be copyrighted and thus it doesn't make sense to speak of a person being in the public domain. I think what you're looking for is personality rights and when they expire. As you can see from that article, the answer varies widely between jurisdictions, so please edit your question to specify the jurisdiction that interests you. (For the US, specify a state.) – Nate Eldredge Jul 6 '18 at 13:12
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    For what it is worth, in most states personality rights expire at death. – ohwilleke Jul 6 '18 at 19:15
  • Pretty sure that photography had not been invented during Mozart's lifetime. – ohwilleke Aug 8 '18 at 6:51
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The right-of-publicity (as it is called under US law) under California law lasts 70 years after the persons death, which still protects Einstein and prevents commercial use of his likeness. Civ 3344.1(g) (https://codes.findlaw.com/ca/civil-code/civ-sect-3344-1.html)

However, Mozart died in 1791 so use of his "likeness" would be beyond the statutory period under California law. Other jurisdictions may have longer periods of protection for deceased individuals.

  • Mozart also never set foot in North America and hence would never have benefitted from California law. – ohwilleke Aug 8 '18 at 6:51

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