11

I began doing some research on Albert Einstein some time ago and in the process found the following article:

I was thinking of writing a chapter about him in a book and putting his picture on the front cover. Do you really think Hebrew University could sue a U.S. author who

  1. put Einstein's picture on a book cover, and

  2. wrote unflattering things about Einstein?

More precisely, could the rights holder sue and win?

If I understand correctly, Hebrew University may lose their rights to Einstein's image in 2025, so I suppose I could just wait a few years.

8
  • 2
    Are you assuming a copyright on the particular image of him you intend to use or have you searched for a public domain image? May 19 at 23:36
  • 4
    I have a public domain image(s). But my understanding is that Hebrew University threatens to sue people who use Einstein's image commercially without paying them a few. If they own the rights to his image, would I be allowed to use a public domain image of Einstein on a book cover? And could they sue me for writing something disparaging about Einstein? May 20 at 0:04
  • The picture for the cover might be a minor issue. You could ask a grafic artist to edit or posterize an image just enough to make a new image, but still recognisable. The overall image right might be something more tricky, if you want to sell outside the US it could be even more difficult. Author rights in Europe last 90 years after the death (But I know nothing about image rights).
    – FluidCode
    May 20 at 7:29
  • @FluidCode - Yes, I'm still a little confused. If Hebrew University owns the "image rights," does that mean Wikipedia had to get permission to put a public domain image of Einstein on their website? If someone creates a derogatory image of Einstein for use on 1) a book cover, or 2) book interior, is that legal? May 20 at 18:17
  • The relevant Wikipedia article is Personality rights; it explains that the issue is commercial exploitation of someone's image, not just distributing a picture of them. So putting inside a book or using as part of a film about something else is unlikely to be considered exploitation of their image but if you sell a poster or make an advert using his image, that's probably exploitation, and if he's on your book cover, you'll have to argue the case law.
    – Stuart F
    May 20 at 19:41

2 Answers 2

17

Nobody knows for sure.

In a directly relevant case of using Einstein's image, in the case of Hebrew University of Jerusalem v. General Motors LLC, 903 F. Supp. 2d 932,

the Court concludes that the New Jersey Supreme Court would likely find that the postmortem right of publicity endures for no more than 50 years after death.

That case was decided in California (US District Court), but Einstein's property rights are defined by NJ law, which is where he died. This summary of right of publicity under New Jersey common law (there is no statute) addresses the question from an NJ perspective, and does not provide any definite answer.

One question relevant to New Jersey, arising from Estate of Elvis Presley v. Russen, 513 F. Supp. 1339, is whether Einstein's persona was exploited during his lifetime. If so, then following the precedent of the Presley case, Einstein's personality rights survive his death. If not, we don't know. The Presley court left that outcome undecided:

we "need not, and therefore do not, decide whether the right would survive the death of the celebrity if not exploited during the celebrity's life" since Presley exercised the right to commercially exploit his name and likeness during his life.

(quoting another Presley case, Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215).

As for the duration of such a right, the court also declined to decide:

Since we are not directly faced with the issue of whether there should be a durational limit on the right of publicity after it is inherited, we will not decide this question. However, the court suggests that a length of time should be set by the New Jersey State legislature. The Federal Copyright Act, 17 U.S.C. §§ 302, 305 provides guidelines which may be informative in this situation.

This suggestion (50 years at the time) seems to encourage the later GM court in arriving at the 50 year figure, rejecting the argument of Hebrew University for 70 years.

In the GM case in California, that court states that

Nothing in Albert Einstein's will specifically mentioned any right of publicity, and during his lifetime he did not claim or receive any monetary compensation for the use of his persona

But then,

Applying New Jersey law (because Einstein was domiciled there at the time of his death in 1955), this Court concluded that New Jersey would recognize a common law postmortem right of publicity without the requirement of lifetime exploitation.

which is not exactly what the Presley court decided. That court then concludes that it must determine

whether he would have intended to transfer that right to HUJ through a provision in his will

The GM court reasons 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

Still, there isn't a compelling argument for 50 years.

So in summary, it is undetermined whether Einstein would have intended his right of publicity to be inherited, or whether NJ law creates such a right post-mortem. It is pretty much guaranteed that HUJ will mount a powerful legal attack.

0
11

Hebrew University says they do

As the article says, they have sued over this and they have won. If you want to take them on and are willing to appeal all the way to the Supreme Court, then we’ll have a definitive answer. The rights are extremely valuable so they are willing to spend a lot to beat you. How deep are your pockets?

Note that what is protected is the publicity rights - Einstein’s image and “persona”. You can write about him and even be critical of him, you just can’t use his image. Also, Einstein died in New Jersey and there are no statutes there on if, or how long, these rights last.

4
  • 5
    how did they end up with "owning" Einstein's persona? Is it that they are just rich and intimidating enough that no one wants to challenge them?
    – vsz
    May 20 at 6:04
  • 3
    @vsz from Wikipedia: "Einstein bequeathed his personal archives, library, and intellectual assets to the Hebrew University of Jerusalem in Israel." May 20 at 6:12
  • 5
    @ArcanistLupus : none of the above would indicate the ownership about what I am allowed to say about Einstein, but they have a bigger army of lawyers then me...
    – vsz
    May 20 at 8:36
  • 5
    @vsz The questions isn't about what you can say about Einstein, it's about whether you can use his image to publicize it. Free speech protects the text, but publicity rights governs the cover picture.
    – Barmar
    May 20 at 13:51

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.