Use of Albert Einstein Image May Be Violation of Right of Publicity

In 2010, General Motors used an image of Albert Einstein in an ad for its Terrain vehicle. The image, which GM licensed from Getty Images, depicted Einstein's head on a muscular, shirtless body with an "e=mc2" tattoo. The image was used by GM in People Magazine's annual Sexiest Man Alive issue. The Hebrew University of Jerusalem, the current owner of Einstein's intellectual property rights, sued General Motors in California, alleging unfair competition under the Lanham Act and California law as well as a violation of the right of publicity. In a recent decision, the California court granted GM's summary judgment on the unfair competition claims, but denied summary judgment on the right of publicity claim.

Applying New Jersey law (as that was where Einstein lived when he died), the court ruled that a postmortem right of publicity exists for celebrities, whether or not the celebrity exploited that right during his or her lifetime. While there was a question of whether Einstein effectively transferred his right of publicity to the University, the court found that there was no question that Einstein, and his rightful heirs, owned such a right. The court found that there was at least a question of fact as to whether GM's use of Einstein's image violated the right of publicity.

The court granted summary judgment on the University's unfair competition claims, however, finding that consumers would not likely be confused into believing that the University, as the alleged owner of Einstein's intellectual property rights, either sponsored or endorsed GM. The court was persuaded by GM's argument that "[t]he Advertisement does not state expressly (or even imply) that Dr. Einstein (or HUJ) endorsed the Terrain, nor would any reasonable reader reach that conclusion. Instead the Advertisement uses Dr. Einstein's face, superimposed on someone else's body, as a play on People magazine's "Sexiest Man Alive" edition, and to make a light-hearted point about the smart (but "sexy") features of the Terrain."

Regardless of the ultimate outcome of this case, it is important to clear the use of anyone's name and likeness in an advertisement or other promotional materials, even if the person is deceased or is not known to be a celebrity who actively licensed or used his or her name for commercial purposes.

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