University Sues GM For Using Einstein In An Ad Without Paying Up

from the theory-of-relative-insanity dept

Thu, May 27th 2010 1:14pm — Mike Masnick

Steve R. was the first of a bunch of you to send in the news that Hebrew University is suing GM for using Albert Einstein's likeness in an ad. A separate article notes that Einstein "is among the world's top-earning dead people" because so many people have to pay to license his image. Apparently Einstein, when he died, left his papers to the university, who is now cashing in. Nice to know that celebrating genius has a price, huh? Copyright is supposed to be about furthering the advancement of science, and here it's being used to profit off the memory of a great scientist. Update: There's a good discussion in the comments on the details of this, as it was not at all clear who owned what rights and what was being sued over in the original news articles. But folks have turned up the details, which involve publicity rights -- a still emerging area of intellectual property law that differs greatly from state to state.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, einstein, publicity rights
Companies: hebrew university

38 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Andrew F (profile), 27 May 2010 @ 12:32pm

Copyright?
Are you sure this is a copyright issue? I thought that "likenesses" were covered under a different legal theory than copyright.
[ link to this | view in thread ]
Mike Masnick (profile), 27 May 2010 @ 1:07pm

Re: Copyright?
Are you sure this is a copyright issue? I thought that "likenesses" were covered under a different legal theory than copyright.

It wasn't clear. I tried to dig in and find out, but the only info I could find was that Einstein left the *copyright* rights to his works and images to Hebrew University.

You're right that likeness cases usually fall under "publicity rights" or "privacy rights" so it's possible that this is what the case is about, but it's not clear from the reporting so far.

If someone has the details I can update the post.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2010 @ 1:17pm

Re: Re: Copyright?
"Copyright is supposed to be about furthering the advancement of science, and here it's being used to profit off the memory of a great scientist." - so what you are saying is that you have no clue this is true, but you are more than willing to rush to judgement. thank freaking god you are not a federal judge.
[ link to this | view in thread ]
:Lobo Santo (profile), 27 May 2010 @ 1:21pm

Re: Re: Re: Copyright?
Obvious troll is obvious!
Try harder troolll!
[ link to this | view in thread ]
Anonymous Coward, 27 May 2010 @ 1:39pm

Re: Re: Re: Copyright?
I don't know, think of how much more fun we could have if he was crowdsourcing his decisions.
[ link to this | view in thread ]
Mikey (profile), 27 May 2010 @ 1:44pm

Re: Re: Re: Copyright?
The image of Einstein in question is copyrighted. Therefore it is a copyright issue.
[ link to this | view in thread ]
Malak (profile), 27 May 2010 @ 1:52pm

'Copyright is supposed to be about furthering the advancement of science, and here it's being used to profit off the memory of a great scientist.'
Either way someone's gonna profit from his memory; I'd rather It was a university than a car company :)
[ link to this | view in thread ]
Jupiter (profile), 27 May 2010 @ 2:02pm

Copyright law has been designed by lawyers so that every cultural artifact of value created in the last 100 years eventually ends up in the hands of lawyers instead of the public. It may be one of the most beautiful shakedowns in history.
[ link to this | view in thread ]
Robin16 (profile), 27 May 2010 @ 2:19pm

Sorry, you have it all wrong. Einstein's estate overseen by Hebrew University prohibits the use of his image for commercial use.

http://photos.aip.org/einuse.jsp

See the link to Corvis? I called them after speaking to Mr. Anderson at that link, this is who holds the photos

http://greenlightrights.com/us/

But the estate which is controlled by Hebrew University PROHIBITS photos of him that greenlight holds for commercial use.

GM used Leo Burnett advertising agency. GM stated that Leo Burnett worked with a well known stock photo holder.

If the photo used by GM was NOT part of those held by Hebrew University then the suit goes PLUNK. There are photos out there which are not part of the estate.

If it was a greenlight photo used, then the suit goes forward because again, commercial use of those photos is forbidden

http://photos.aip.org/einuse.jsp

ESVA provides photos of Einstein and other images for non-commercial use only. Follow this link for more information about our use policies.
[ link to this | view in thread ]
Richard (profile), 27 May 2010 @ 2:30pm

It's just certain images
This image of Einstein is PD

http://en.wikipedia.org/wiki/File:Einstein1921_by_F_Schmutzer_4.jpg
[ link to this | view in thread ]
Anonymous Coward, 27 May 2010 @ 2:37pm

Re: Re: Re: Re: Copyright?
you make me wonder sometimes. it is clear mike ran the story without any clue what it was about, didnt take 5 minutes to look into it, and pretty much punted it. in the end, the copyright issue isnt about profit, except to stop a car company from profiting from it. it seems to me that the copyright is about image and not about making a profit. basically, mike got it wrong in all sorts of ways, not the first time this week he has punted a story into the weeds.
[ link to this | view in thread ]
RD, 27 May 2010 @ 3:02pm

Re: Re: Re: Re: Re: Copyright?
"in the end, the copyright issue isnt about profit, except to stop a car company from profiting from it. it seems to me that the copyright is about image and not about making a profit."

Are you serious? And you blame Mike for not reading the article and/or missing the point? Sorry, you are just a complete idiot TAM. This is ALL about profit, otherwise why do they even HAVE a licensing aspect? Get your head out of your corporate paymasters asshole and stop defending those who wish to lock up ALL culture in private hands for profit only, while returning NONE OF IT back to the public, in complete contravention of the Copyright Bargain in the constitution.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2010 @ 3:03pm

Re: Re: Re: Copyright?
Surely Mr Masnick would do no such thing.

Why only a few days ago Mr. Masnick posted a story about how people want their journalists to do actual fact checking, rather than simply relying on what other sources say.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2010 @ 3:07pm

Re:
"every cultural artifact of value created in the last 100 years eventually ends up in the hands of lawyers instead of the public"

As a lawyer, musician, and member of the public, I can assure you this isn't true. If it were, I'd be a lot richer.
[ link to this | view in thread ]
Mike Masnick (profile), 27 May 2010 @ 3:11pm

Re:
Sorry, you have it all wrong

Which part is wrong exactly?

Einstein's estate overseen by Hebrew University prohibits the use of his image for commercial use.

They can say whatever the hell they want. The question is whether or not they have any legal right to do so.

But the estate which is controlled by Hebrew University PROHIBITS photos of him that greenlight holds for commercial use.

And which part of that makes the story wrong?
[ link to this | view in thread ]
DevConcepts (profile), 27 May 2010 @ 3:11pm

Re:
So I can keep my avatar as long as I don't make money then?
[ link to this | view in thread ]
Mike Masnick (profile), 27 May 2010 @ 3:12pm

Re: Re: Re: Re: Copyright?
Why only a few days ago Mr. Masnick posted a story about how people want their journalists to do actual fact checking, rather than simply relying on what other sources say.

Indeed. And if this were a journalism project, you would have a point. But it's not. I post what I find interesting and put up with my opinion for discussion -- where I hope and expect people to discuss and add any pertinent data. It's what's actually happening in the comments while you were looking for something snarky to say.

Turns out that in doing it that way, we all get to learn something.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2010 @ 3:21pm

Re:
If I read that last link correctly, they got publicity rights not from Einstein who secured them and then transferred them, but on their own AFTER the man was dead?

I am very disturbed by this. Publicity rights bother me if the person controlling them is the person in question. The thought of handing them down to the next generation just seems beyond the questionable line.

But to point at a dead man and demand all rights in how his name and image is used, AND BE GRANTED that? That just goes into icky territory.

So I hope I read that wrong.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2010 @ 3:47pm

Re: Re: Re: Re: Re: Copyright?
"It's what's actually happening in the comments while you were looking for something snarky to say."

Pleased to meet you Pot. I'm Kettle.
[ link to this | view in thread ]
Robin16 (profile), 27 May 2010 @ 3:52pm

OK here goes, here's the link to the court docs

http://misstilaomg.com/2010/05/24/brains-vs-brawn-albert-einstein-is-suing-general-motors-co rporation/

You have to read them to know the nature of the suit. Just keep clicking on them individualy to enlarge. Read that HU is saying that it makes it look like Einstein is endorsing the Terrain by GM and that it brings loss to Hebrew University. How could a dead man endorse GM and the fact is that other companies have used his image in their advertising. It's called "celebrity image rights" In this case, a dead "celebrity"

Then read this. See who owns Corvis? Bill Gates. When I called Corvis they are the ones who referred me over to Greenlight. Greenlight is named in the suit but Corvis is in there.

http://www.bloomberg.com/apps/news?pid=newsarchive&sid=au90S8Nskay4&refer=redirect oldpage

Mike Masnick, I apologize. The person I spoke to at the foundation was the one who told me the photos cannot be used for commercial use. Now I am realizing he means the photos they give out for a nominal fee which are not to be used commercially.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2010 @ 3:54pm

Re: Re: Re: Re: Re: Re: Copyright?
Pleased to meet you Pot. I'm Kettle.

We already knew that you are well acquainted with pot.
[ link to this | view in thread ]
mrharrysan (profile), 27 May 2010 @ 4:30pm

It isn't even a photograph
Mike, All,
Here is a link to an article about this from Israel:
http://www.haaretz.com/news/international/hebrew-university-sues-gm-over-topless-einstein-a d-1.292570
[ link to this | view in thread ]
Karl (profile), 27 May 2010 @ 4:43pm

Re: Re:
Which part is wrong exactly?

Having looked at the Hebrew University site, they state clearly that they do not hold the copyright to the images. Rights must be granted by the original photographer.

What they do claim to hold is Einstein's personality rights.

In other words: even if GM has a legitimately licensed photo, they still can't use it commercially without consent from Hebrew University.

At least, not in California. Personality rights vary from state to state; in most states, it doesn't survive the death of the person, and some states don't have personality rights at all. So there may be some pretty interesting reasons why the case was filed in California. For example: the Celebrities Rights Act.
[ link to this | view in thread ]
Mike Masnick (profile), 27 May 2010 @ 4:56pm

Re:
You have to read them to know the nature of the suit. Just keep clicking on them individualy to enlarge. Read that HU is saying that it makes it look like Einstein is endorsing the Terrain by GM and that it brings loss to Hebrew University. How could a dead man endorse GM and the fact is that other companies have used his image in their advertising. It's called "celebrity image rights" In this case, a dead "celebrity"

Ah yeah. California and NY have the strongest celebrity image rights laws, so no surprise that the lawsuit is in California. There are serious problems with such publicity rights laws, which this case is highlighting.

Thanks for sharing the links...
[ link to this | view in thread ]
Anonymous Coward, 27 May 2010 @ 5:31pm

Re: Re: Re: Copyright?
TAM, we know it's you. Even though you no longer call Mike Mikee or use the pseudonym of TAM (The Anti-Mike), it's you, brother.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2010 @ 6:00pm

After much searching over the net I was finally able to find a location providing information beyond the "me too" reports by the various news services. The info can be found at:

http://thelicensinglawblog.com/2010/05/the-uncertain-law-of-dead-celebrity-goods-einstein-edi tion/

From a legal standpoint it is a very, very unusual case. A university in Israel is the plaintiff, the defendant is a corporation that last time I looked was headquartered in Michigan, the lawsuit was brought filed in a federal district court in Los Angeles, the suit appears to pertain to trademark (state? federal? both?), right of publicity (a creature solely of state law), and unfair competition (likewise a creature solely of state law), with one question apparently being whether New Jersey or California law applies regarding the right of publicity. The article makes no mention of federal copyright law, suggesting that only state statutes are involved.

Even the most twisted author of a question on the California Bar Exam could not come up with this scenario.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2010 @ 6:26pm

Re: Re: Re: Re: Re: Copyright?
nothing personal mike, but i learned snarky from you. you are a talent beyond your years when it comes down to being rude.
[ link to this | view in thread ]
Robin16 (profile), 27 May 2010 @ 6:42pm

http://library.ias.edu/hs/einsteininfo.php

Institute for Advanced Study, Einstein Drive, Princeton, New Jersey 08540 USA (609) 734-8000

Corbis
The Corbis (previously Roger Richman Agency) represents Hebrew University in the United States for granting licensing for the use of Einstein's image in print, television and film. Anyone seeking permission to use images of Einstein, other than for scholarly publication, should be referred to this agency. Corbis/Roger Richman website
Roger Richman Agency 9777 Wilshire Boulevard, Suite 700
Beverly Hills, CA 90212
phone: (310) 276-7000 - fax: (310) 276-8023

Corbis is owned by Bill Gates. In 2008 they restructured to name their Rights Services Division Greenlightrights. Greenlight is named in the lawsuit as who the picture was purchased from.

http://einstein.biz/photos

GreenLight LLC and its affiliates exclusively represent publicity, trademark, and related rights of Albert Einstein on behalf of The Hebrew University of Jerusalem. "Albert Einstein" and "Einstein" are trademarks and/or registered trademarks of The Hebrew University of Jerusalem.

Does that help you understand. Hebrew University owns the trademarks for Albert Einstein
[ link to this | view in thread ]
Anonymous Coward, 27 May 2010 @ 6:58pm

Re: Re: Re: Re: Re: Re: Copyright?
rd, you also fail at basic comprehension of peoples motives. they dont have to have a profit motive, they have a protectionist motive. i suggest you read robin16 post and read the details. perhaps then you will understand.
[ link to this | view in thread ]
Robin16 (profile), 27 May 2010 @ 7:12pm

Protectionist AND profit. They are claiming that the use by GM has harmed their trademark (which earns them big bucks) and they did not give their permission for it to be used in this manner. They specifically stated in the lawsuit that the way it was used makes it look like Hebrew University endorsed GM with that image which they say they protect and it was used improperly in distorting it. Citing unfair business practices under the Lanham Act http://www.bitlaw.com/source/15usc/

Big bucks
http://www.bloomberg.com/apps/news?pid=newsarchive&sid=au90S8Nskay4&refer=redirectold page

Forbes 2008 listed Einstein as one of the top earning dead celebrities

http://www.forbes.com/2008/10/27/top-dead-celebrity-biz-media-deadcelebs08-cz_ph_1027 celeb.html
[ link to this | view in thread ]
Richard (profile), 28 May 2010 @ 6:04am

Re: Re: Re:
Since Einstein died in New Jersey the law there would determine whether these rights could be maintianed after his death.

Not sure what the law there says - but had he died in New York then these rights would have died with him - as for Marilyn Monroe.
[ link to this | view in thread ]
RD, 28 May 2010 @ 8:41am

Re: Re: Re: Re: Re: Re: Re: Copyright?
"rd, you also fail at basic comprehension of peoples motives. they dont have to have a profit motive, they have a protectionist motive. i suggest you read robin16 post and read the details. perhaps then you will understand."

No, it is you who fail at basic comprehension of people's motives. Copyright and licensing are absolutely a construct of profit making. This issue is absolutely about money. The ONLY reason they have to "protect" Einsteins image is so that they can be the only ones to exploit it for profit. There is no motive here for "protecting" Einsteins image, the man is dead. His legacy are ALREADY set in history, so there is no longer any need to "protect" him from anything. Once you die, thats it, you dont have any further claims to, for, or against anything that is said or done about you. He is DEAD, get it? His works may still be under copyright, but the man himself is DEAD. And as you cant copyright a person, there should be no claim here, and cant be any past death. QED.
[ link to this | view in thread ]
Robin16 (profile), 28 May 2010 @ 10:39am

Here is a really good article, comprehensive, because this is by far not the first time Hebrew University and Bill Gate's company who represents the trademark here has done this

http://discovermagazine.com/2008/mar/05-einstein-inc
[ link to this | view in thread ]
Robin16 (profile), 28 May 2010 @ 11:24am

More: the law firm Arent-Fox are the attorneys for this case against GM

They were also the attorney for this case which took a website down

http://www.arentfox.com/publications/index.cfm?fa=legalUpdateDisp&content_id=2018

Int eresting: (Richmond was bought by Corbis=Greenlight now)
http://www.biographybase.com/biography/Einstein_Albert.html

Commercial usage
"Albert Einstein" is a registered trademark of The Roger Richman Agency, Inc. [6] (http://www.hollywoodlegends.com), that controls the (commercial) usage of the name. Advertisements and merchandise including the name, likeness and image of Albert Einstein must be licensed by this agency. In this specific case the agency acts as a representative of the Hebrew University of Jerusalem, which Einstein himself had supported actively, and this institution will benefit from all license fees. Furthermore, the agency may entirely prevent usage of Albert Einstein in a way that does not conform to the public image of the trademark. The agency's website dedicated to Albert Einstein [7] (http://www.albert-einstein.net) states that "When written in copy on all materialy, the name 'Albert Einstein™' must always bear a ™ symbol." (see [8] (http://www.albert-einstein.net/styleguide-readonly/brand.html)).

Though the general purpose of Roger Richman Agency — at least in the case of Einstein — is not a purely commercial one, there is some controversy about the licensing of popular names. The agency "owns" numerous other well-recognized names, such as "Sigmund Freud" and "Steve McQueen", and apparently uses the associated rights not exclusively for the protection of the dignity of these symbols. Indeed, the agency's official website advertises its service claiming that "celebrated personalities deliver instant recognition, recall and credibility to your advertising campaign and/or promotional program." On the other hand, various licensed advertisements feature rather a caricature of the scientist. These could be considered as a misuse of Einstein's popularity, since they lead to a further distortion of Einstein's public image instead of displaying him as "one of the most renowned scientists and humanitarians of all time" as advertised on the agency's webpages.
*********************************************************
Hebrew University has lawyered up to protect their trademark because it brings $$$$$$ to the university. Say all you want that they have only altruistic motives and I will say BUNK! Because his image has been used in comedic ways many times.

I just wonder why Leo Burnett which has been around for years wasn't aware of the pitfalls of using his image.
[ link to this | view in thread ]
RD, 28 May 2010 @ 10:14pm

FU
"Since dying in 1955, Einstein hasn't been a slouch on the publication-rights circuit. Forbes magazine ranked Einstein in 2008 as the fourth-highest-earning deceased celebrity, earning $18 million annually."

source - http://content.usatoday.com/communities/driveon/post/2010/05/gm-riles-hebrew-university-over-use-of- einstein-image/1

Fuck you it isnt about "profit." This disproves that completely.
[ link to this | view in thread ]
Melody, 25 Jan 2012 @ 9:24am

What about my own illustration of him?
If I draw a likeness of Einstein and decide to use it for commercial purposes, does this fall under the same issue? Or am I free to do so since it isn't something that the University 'owns the rights' to?
[ link to this | view in thread ]
Maria, 15 Aug 2012 @ 2:08pm

Re: Re: Re: Copyright?
The University is there for the advancement of science, and GM is a mega for profit company that runs to the taxpayers for loans when their shareholders blow all the cash! GM OWES THAT MONEY TO THE UNIVERSITY!

Einstein left his name and image to the university for a reason and that was for the advancement of science.
[ link to this | view in thread ]
Jo, 4 Dec 2012 @ 4:53pm

Copyright in other countries?
Do the same rules apply with using his image in other countries - like Australia for example?
[ link to this | view in thread ]