Will
your image live longer than you do? Artists,
celebrities, and other creatives often invest substantial time and effort
cultivating a personal brand image, and most likely anticipate its longevity. The law recognizes a person’s right to profit
from this investment by preventing third parties from “free riding” on a famous
individual’s name or likeness. A
majority of states recognize this “right of publicity,” but vary as to whether
this right should outlast its initial rightsholder and for how long. In some, like New York, the right is
extinguished with the death of the individual.
But in others, including California, the right of publicity constitutes
personal property that can be passed on to ones’ heirs.
How long
should an heir expect to control the inherited value of a celebrity’s image? Some state statutes set explicit time
frames. For example, in California,
where Hollywood has a stake in protecting personal images, the
Celebrities
Rights Act allows holders of publicity rights to sue for infringement for
up to 70 years after the personality’s death.
This corresponds to the protection copyright law currently affords to
creative works. In contrast, fame in
Virginia is short-lived; its
law bars
right of publicity actions commenced more than twenty years after the
individual’s death. One wonders if this
variation reflects a difference in the perceived half-life of a Hollywood
star’s commercial image versus that of a beltway politician.
Most
states follow a common law approach and have allowed courts to decide the
duration of the post-mortem right. But
not all state courts have had the opportunity to do so. This is the case with New Jersey; its
post-mortem right of publicity was recently the subject of a highly publicized
lawsuit brought in California by the Hebrew University of Jerusalem against
General Motors.
The
case began with a single GM ad in People Magazine’s 2009 Sexiest Man Alive edition.
The ad, for GM’s 2010 Terrain vehicle, featured a photo of Albert
Einstein’s head digitally grafted onto an extremely athletic physique. GM captioned the image with the slogan “Ideas
Are Sexy Too,” playing with the theme of the magazine and marketing its brand
as smart and seductive.
The
ad caught the attention of Hebrew University, which had obtained “all [of
Einstein’s] publication rights … of any and every kind whatsoever” from
Einstein’s secretary and stepdaughter who held them in trust. Even though Einstein had not expressly
devised his “publicity rights,” the University had leveraged the Einstein gift into
an $18 million licensing program by attracting dozens of high-profile
corporations like Apple, Panasonic, and Warner Bros. which sought to trade on
the genius’ name and likeness. By using
Einstein’s face without a license, the University alleged that GM falsely
implied an endorsement and undermined the University’s legitimate business
interests in the famous relativist’s publicity rights.
The
case,
Hebrew University of Jerusalem v. General
Motors LLC, was filed in 2010 in the U.S. District Court for the
Central District of California. Still,
New Jersey law would be applied to Hebrew University’s claim because the
application of post-mortem publicity rights is determined by the place of death
of the rightsholder. Einstein died in
Princeton, NJ in 1955.
GM
argued that the University had no basis to restrict its use of Einstein’s famous
visage. First, GM noted, no New Jersey state court has recognized a post-mortem
right of publicity. Secondly, it
argued, even if New Jersey were found to recognize a surviving right in the
deceased’s image, it should be conditioned upon his or her having commercially exploited
that publicity right while alive. The District
Court rejected both arguments. Citing a
history of cases and treatises,
Judge
Matz wrote:
There
are sound … reasons to allow the heirs of a famous decedent to prevent
strangers from exploiting his name, image, reputation and identity, even if the
decedent himself did not do so during his lifetime. … [T]here have been famous people who … renounced
wealth or declined to pursue it, and … were revered for their modesty and
spirituality. Surely a part of whatever
happiness and satisfaction they derived from being famous came from the
realization that they were setting an example for those closest to
them—presumably including their heirs.
Such people fairly can be deemed to have “exploited” their fame by
developing a persona that showed what they cared most about … [D]eath should
not deprive them of the very attribute that they intended to leave as their
legacy.
This
evocative language clearly sets forth grounds for observing the legacy of a
famous individual’s image, perhaps also for limiting the financial exploitation
of it to the individual’s heirs. (One
also wonders if Judge Matz isn’t giving grounds potentially for an heir to
complain that a joint rightsholder or licensee is not accurately portraying the
deceased’s image in its exploitation.)
The question of how long such a personal property right ought to be
enforceable is not self-evident. No
state court in New Jersey had considered the issue. (Although the New Jersey
legislature twice considered a 70-year term as part of the “
Celebrity
Image Protection Act,” that bill failed on each occasion.) In the absence of New Jersey authority to
determine the duration of the post-mortem right, the District Court in
California considered the nature of the right itself, the laws of sister
states, and public policy.
Judge
Matz noted that the right of publicity developed, historically, within the
context of privacy rights, as a means of guarding against invasion of privacy
and protecting personal dignity. Over
time, right of publicity jurisprudence moved from the privacy framework in
which it originated and, as its commercial value grew, became more aligned with
intellectual property rights, which protect against unjust enrichment or
consumer deception through the infringement of creative “intangible” property. Major legal treatises, such as the American
Law Institute’s Restatement (Third) of Unfair Competition, “codify” this contemporary
understanding of the right of publicity.
Because New Jersey courts generally align with the Restatement, the
court in California determined that New Jersey would likely follow an
intellectual property-type approach as well, perhaps analogous to trademark or
copyright law.
From
a trademark perspective, the question then becomes: how long does a person’s
name, image or likeness function as a signifier of goodwill? The court suggests that this issue involves a
test familiar in advertising and trademark law: would a viewer of a famous
name, image or likeness infer that the celebrity, or his or her heirs, endorsed the product to which it was
attached? The likelihood of such an
inference diminishes after death, but it does not disappear. In fact, the success of Hebrew University’s
licensing program demonstrates the continued viability of Einstein’s image as a
signifier of genius, science, and education.
The court, observing that it was unlikely any viewer of the ad would
reasonably infer that Einstein (or his heir) was endorsing the GMC Terrain, made
an assessment that the duration of the post-mortem right of publicity ought to
be no more than 50 years. (The decision
appears to leave open the possibility that the viewer’s assessment might have
been different if the ad had been for a fountain pen.)
Taking
a copyright perspective, Hebrew University argued that the post-mortem right
should be coterminous with the current
Copyright Act, which provides for
70 years of protection after death. The
court disagreed for a number of reasons.
First, under this theory, the University could have initially expected
no more than 50 years of post-mortem protection because, in 1982 when it
acquired Einstein’s publicity rights, the 1976 Copyright Act only afforded 50
years of protection after the death of the originator. Secondly, the court noted that copyright and
publicity rights emerge out of different legal regimes and serve different
goals. Grounded in constitutional
language, copyright promotes “the useful Arts” by rewarding creatives (and
their heirs) with a limited monopoly over the fruits of the artist’s
labor. On the other hand, the right of
publicity, for all its commercial appeal, still has a far more personal
orientation, protecting the identity of an individual and the general interest
in disassociating oneself from personally offensive products or ideas. Because of these differences in origin and
function, the court concluded that, aside from recognizing what the University
might have expected, it had no reason to track the duration of publicity rights
with that afforded to copyright holders.
For
the District Court, all of this pointed to a 50-year post-mortem right in New
Jersey. This particular length of time aligns
with the laws of the other states. Of
the thirteen states with statutes expressly providing a post-mortem right of publicity,
a majority, seven, limit their duration to 50 years or less. Further, in the other states where the right
has developed at common law, none has yet addressed the issue of when the right
ought to expire because most of the actions have been filed within a relatively
short time after the testator’s death.
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| "I belonged to the public and to the world" |
By
addressing, at some length, the nature, purpose, and national application of
the post-mortem right of publicity, the District Court sought to avoid the
appearance of imposing an arbitrary limitation on the enforcement of this
right. Still, the arbitrariness lies in
the patchwork of state authority that allows Einstein’s heirs to enjoy 50 years
of publicity rights after his death in New Jersey, while Marilyn Monroe’s image
passes immediately into the hands of the public because she lived in New York
at the time of her death. The Balkanized enforcement of this “right” is certain
to give headaches to publishers and other distributors that wish to communicate
widely over an environment geographically divided in its approach. For example, in
Milton H. Greene Archives Inc. v. Marilyn
Monroe LLC, the Ninth Circuit recently rejected the claims of Monroe’s
heirs to a right of publicity in her enduring image because, at the time of her
death, her executors (seeking advantageous tax treatment) insisted that she was
domiciled in New York, which does not recognize the right posthumously. But, perhaps this is how she would have
intended it to be. After all, contrary
to what Monroe LLC might wish, the American icon herself said “I knew I
belonged to the public and to the world, not because I was talented or even
beautiful, but because I had never belonged to anything or anyone else.” The post-mortem issue will be taken up again
soon with an appeal to the same circuit court of a Washington judge’s decision
with respect to Jimi Hendrix’s image in
Experience Hendrix, LLC v.
Hendrixlicensing.com, LTD which found that state’s post-mortem right of
publicity laws to be unconstitutional on full faith and credit and dormant
commerce clause grounds. As with the
Marilyn Monroe case, the forum-shopping of the Hendrix estate for a potentially
more lucrative domicile for its decedent prompted the court to draw a line. For those interested in the images of dead
physicists and other famous people, the variation among the states promises to
keep this jurisprudence lively.
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