The US District Court for the Central District of California is currently litigating who owns Albert Einstein’s right of publicity. The litigation began after G.M. used the famous physicist’s image in an ad in People Magazine’s Sexiest Man Alive issue to advertise their Terrain Vehicle. The most recent decision in The Hebrew University of Jerusalem v. General Motors came down March 16.
The first issue regarded choice of law. Einstein died in New Jersey, and the courts therefore applied N.J. law to his right of publicity, quoting Cal. Civ.Code § 946: “If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile.”
The next issue of interest regarded whether his right descended via his will, or trust, since they had different beneficiaries. If the right descended by the trust, Hebrew University owned the rights. If by will, they don’t. Hebrew University moved for Summary Judgement.
Since the right of publicity didn’t exist at the time of Einstein’s death, neither instrument explicitly provided for its decent. Therefore, the court applied N.J.’s “doctrine of probable intent,” which states that courts should “strain” toward effectuating the testator’s probable intent, “to accomplish what he would have done” had he the circumstances been put before him. In doing so, courts are to, “give primary emphasis to [testator's] dominant plan and purpose as they appear from the entirety of his will… in the light of the surrounding facts and circumstances…
Mr. Einstein’s will stated:
I give and bequeath all of my manuscripts, copyrights, publication rights, royalties and royalty agreements, and all other literary property and rights, of any and every kind or nature… to my Trustees… IN TRUST, to hold… [for the benefit of] Hebrew University….
Hebrew University argued that the words “manuscripts, copyrights, publication rights, royalties and royalty agreements, and all other literary property and rights, of any and every kind or nature,” should include Einstein’s right to publicity. G.M. argued that the Einstein intended to convey his intellectual property into the trust, not all property, including not a right to publicity. The court therefore found an issue of fact and denied summary judgement.
Funnily enough, Hebrew also filed a claim for False Endorsement, which the courts dismissed, noting that no reasonable person would believe that Einstein had endorsed G.M.’s modern all-terrain vehicle.The ad. Though I’ve always prefered the above image.