Judge Rejects Einstein Publicity Rights Claim... By Playing Dice With The Law
from the finger-in-the-wind dept
A couple years ago, we wrote about Hebrew University suing GM for using an image of Albert Einstein in an ad without first getting permission (i.e., paying up). Einstein left his assets to Hebrew University (of which he was a founder and a big supporter), and Hebrew University has taken that to an extreme, more or less arguing near complete ownership over Einstein's likeness, and has been ridiculously aggressive in trying to enforce those rights -- to the point of tricking print shops into printing Einstein images, only to threaten them with lawsuits. All this despite the concept of publicity rights barely even existing in Einstein's time, and no indication that he cared one way or the other about such things.Hebrew University came up short in the GM case recently, as the district court rejected the publicity rights claim -- but for bizarre reasons. Part of the issue is that publicity rights are both relatively new and are a part of state law (where they exist), meaning they differ from state to state. And, a big issue is whether or not they apply after death. In some states they do. In some states they don't. In others... the law doesn't say. That's the case here, where the publicity rights law in question was New Jersey's (where Einstein resided when he died) -- and it's just common law, as opposed to actual regulations. Thus, there just isn't any clear statement in terms of publicity rights after death, since there's no actual law on the books. So what did the court do? It just went ahead and decided randomly that publicity rights do live on after death, but just for 50 years. Why 50? Well, for one reason, it's one more than 49 and one less than 51.
A maximum 50-year postmortem duration here would be a reasonable middle ground that is long enough for a deceased celebrity’s heirs to take advantage of and reap the benefit of the personal aspects of the right.... The obviously humorous ad for the 2010 Terrain having been published 55 years or more after Einstein’s death, it is unlikely that any viewer of it could reasonably infer that Einstein or whoever succeeded to any right of publicity that Einstein may have had was endorsing the GMC Terrain.Actually, the defense of the 50 number is even more bizarre. The judge looks to copyright law -- in part because Hebrew University argued that copyright's "life plus 70 years" made sense. The judge, used some of that -- saying copyright was a good measuring stick, but rejected the 70 years after death, because at the time Hebrew University got the rights (1982), the copyright term was 50 years after death -- so the judge used that as the base. Huh? First of all, copyright and publicity rights are entirely different things, for different purposes, designed to deal with different issues, and coming from different legal concepts. They come out of entirely different legal theories. Mixing and matching them makes no sense. Even then, if we accept the judge's thinking that we should go with the length as of 1982, it still doesn't make much sense. Since he's basing this (for reasons we still can't fathom) on copyright length, it seems worth pointing out that copyright term extension (thank you Sonny Bono) took everything to 70 years... retroactively. So works created in 1982 get life plus 70 anyway. So, the life plus 50 is supported by... nothing.
The judge tries really hard to make the case that there are enough similarities between copyright and publicity rights for this arbitrary number to make sense, but it's a really strained argument:
There are certain similarities between the goals of copyright and those of the right of publicity. In a sense, both rights evolve from an act of creation, whether it is the creation of a “work” such as a writing or the creation of a cultivated persona. These acts of creation are the product of an individual’s choices and self-expression.But that's not true, even if he cites some other courts making the similarly baseless claim. Copyright is federal law designed for the "promotion of the progress." Publicity rights are this quasi-restriction that has really only appeared in the last few decades, and seems much more similar to trademark than to copyright. That's because it's more about avoiding having the public think the person in question "endorsed" a product when they did not. That's completely unrelated to copyright. The real culprit here is the ridiculous lumping of completely different concepts into the "intellectual property" bucket. Lazy judges are saying "well that's intellectual property and that's intellectual property, so they're analogous." Even when they're not. At all. The judge quotes a bunch of courts who make really really wrong statements. For example, the Zacchini case, where a judge argued that publicity rights are "closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation." Again, though, that's not true. The "reap the reward" part (in both cases) is the means, not the end. But the end point in both cases is entirely different. Frustrating that judges could get something so simple so wrong.
The judge notes some differences between publicity rights and copyright, but just lists out some (though, certainly not all -- or even the major) differences, and leaves it at that. He then just looks at other states, and how they handle the term of publicity rights, and decides that 50 years fits within the reasonable range, and that since we're (just) past that, Einstein's "persona should be freely available to those who seek to appropriate it as part of their own expression, even in tasteless ads."
Well, I agree with that last part, at least. But the whole life-plus-50-years rationalization sets a random precedent based on a judge's fabrication -- and that seems problematic.
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Filed Under: einstein, new jersey, publicity rights
Companies: hebrew university
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Judges create laws
He could have easily just ruled that sense the Hebrew University could present no legal basis for their publicity rights claim that their suit was invalid. Instead, he wanted to create some kind of precedent that will do nothing but confuse the issue in the future.
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Incentive
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"it's just common law, as opposed to actual regulations"
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Yikes. The Zacchini opinion wasn't written by just "a judge." It was Justice White's majority opinion for the U.S. Supreme Court. If you look at the context for the quote, Justice White was differentiating two different types of privacy torts, false light and publicity. Whereas false light seeks to protect "feelings or reputation," publicity seeks to protect the proprietary rights that people, such as Zacchini, have in their acts (such as Zacchini's human cannonball act). The right of publicity permits Zacchini to "reap the reward of his endeavors." His act was famous, and the right allowed him--and not others--to gain from that fame. This is just like copyright, which allows authors to reap the rewards of marketing their works. And it's just like trademark, that allows mark holders to reap the rewards of their goodwill in the market.
The comparison is sound. Your whining is not. Justice White explains the comparison: Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 576-77 (1977).
I know you HATE that quote from Mazer v. Stein, because it focuses on authors' and inventors' rights (which you despise), but nonetheless, rewarding authors and inventors is how the copyright and patent systems in turn promote the public good. Your silly means-ends distinction, as always, misses the point. The exclusive rights of publicity, copyright, and patent are analogous because they incentivize the creation of works that benefit the public.
Sorry, but this article is just more whining... and misunderstanding on your part.
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Re: "it's just common law, as opposed to actual regulations"
So true.
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Re: Judges create laws
Did you whine that the judge was "legislating from the bench" when Tenenbaum's or Thomas-Rasset's damages were cut to $2,250 per song because the judge decided that's all the Constitution would allow?
Judges make decisions like this everyday. It's funny to watch you guys react like this is something new.
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The judges thought process is fairly straightforward....
Since the time he died 55 years ago, at some point since then the general view of the public changed to believe the deceased continues to have views on anything. So OBVIOUSLY dead + 70 years is too long, because the public view changed at some point before death + 55 years.
So taking baby steps, the judge decides death + 50 would be good middle ground between death +0 and death + 70 for an event that occured at some point before death + 55.
... Funny thing is I remember a study done that ~30 years from major events the youth are significantly less aware of that event even happening.
If there was ever a starting point for the any of the arbitrary rights time, I would think research saying that about 30 years after the event no new people gives a rats (body part of choice) is a good starting point. It is even less arbitrary than a person's (who is no longer of this world) continued rights in this world.
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Re: Re: Judges create laws
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Copy/pasted from one of my previous comments to save time:
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Wouldn't it be nice if the majority of the population who have given "sacrificial days" to their work would get paid for the rest of their lives plus 70yrs for those days. "Sacrificial days", is that intended to conjure an image of Christ on the cross? Oh, the humanity!
Yes they should get paid for their work, once.
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Re: Re: Judges create laws
What happened in the cases you cite is a judge doing what they are set to do, pronounce sentences. A Judge has the right to amend the jury awards if s/he believes it to be contrary to the Constitution or legal precedent. However, that is not legislating from the bench.
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Re: Re: Re: Judges create laws
Here, there is no written rule that the judge clashed with. Instead, the judge had to decide how long publicity rights last in NJ. The judge did not ignore any explicit rules.
The university asked the court to say that publicity rights in NJ last either 70 years or indefinitely. The judge decided that 50 years was what the court in NJ would likely decide, so that's what it went with. This was a concrete case between adversaries where an answer to that question was actually needed. The judge didn't just decide the law in NJ. He decided the law that would apply to the concrete case before him.
I would think that since the university got only 50 years of IP protection, instead of 70 years or infinitely many years, you anti-IP folks would be celebrating.
So honestly, I don't see how the damages issue in Tenenbaum or Thomas-Rasset is just a judge following the law (while explicitly deciding not to follow it), while this case is a judge not following the law (when the existing law is absent on the issue). Do you have an argument that makes sense, or are you just in defend-Mike-aimlessly mode as per usual?
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The $150,000 is for willful copyright infringement. It need not be criminal. Both Tenenbaum and Thomas-Rasset were willful infringers.
http://www.law.cornell.edu/uscode/text/17/504
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If they were paid for it, yes.
Perhaps even if they weren't. Have you heard of the term "starving artist"?
It's a nice fallacy that that no one would create if they didn't get copyright/patent protection.
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Re: Re: Re: Re: Judges create laws
"The university asked the court to say that publicity rights in NJ last either 70 years or indefinitely. The judge decided that 50 years was what the court in NJ would likely decide, so that's what it went with. This was a concrete case between adversaries where an answer to that question was actually needed. The judge didn't just decide the law in NJ. He decided the law that would apply to the concrete case before him."
I agree an answer was needed. However, the only clear answer was that there are no laws stating otherwise, so publicity rights don't exist. Making up a law, which the life+50 year judgement is, was the wrong choice.
I would think that since the university got only 50 years of IP protection, instead of 70 years or infinitely many years, you anti-IP folks would be celebrating.
We are fine with the general idea of the Hebrew University losing the case, but the actual ruling sets a dangerous and wrong precedent. As I said already, they should have lost because there is no publicity right for them to claim.
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Re: Re: Re: Re: Re: Judges create laws
The judge also has to square the jury award against the 8th amendment which bars excessive fines. So yes, the judge in that case was doing his judiciary duty.
8th Amendment excessive fines was not the issue there since statutory damages are not "fines." The issue was the due process clause. Regardless, you haven't distinguished how the judges there were doing their "judiciary duty," while the court here was not. Don't work backwards!
I agree an answer was needed. However, the only clear answer was that there are no laws stating otherwise, so publicity rights don't exist. Making up a law, which the life+50 year judgement is, was the wrong choice.
The judge did not invent publicity rights. They already existed in New Jersey. The issue was how long those rights lasted.
We are fine with the general idea of the Hebrew University losing the case, but the actual ruling sets a dangerous and wrong precedent. As I said already, they should have lost because there is no publicity right for them to claim.
Again, this judge did not invent publicity rights in New Jersey. Understanding that, how are you going to spin this as something we should all be scared of? IP rights are so scary!!!
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Yep, people have always created works and always will. So what's your point?
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Re: Re: Re: Re: Re: Re: Judges create laws
1) Publicity rights are not intelectual property.
2) The Judge pulled a random number from his butt to create a publicity rights term that does not exist.
Are those clear enough for you?
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It's worked for all of human history except for the last 300 years...
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Re: Re: Re: Re: Re: Re: Re: Judges create laws
Of course they are. Says so right in the opinion. Do you not understand what intellectual property is?
2) The Judge pulled a random number from his butt to create a publicity rights term that does not exist.
The judge had to decide whether Einstein's publicity rights still were in force or not, so he had to decide concretely when they ended. Just like the judges in Tenenbaum and Thomas-Rasset pulled the $2,250 number out of thin air.
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Look to the fashion industry for your answers. Tons of creativity happening there with almost zero IP protection:
https://www.techdirt.com/articles/20030910/0054251.shtml
Or the magic business, lots of new stuff being created there:
https://www.techdirt.com/articles/20070910/224932.shtml
Or stand-up comedy, still making people laugh without IP:
https://www.techdirt.com/articles/20091123/0131277046.shtml
Or the restaurant business, lots of creativity there too:
https://www.techdirt.com/articles/20100702/11365410062.shtml
This that enough proof for you?
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Let's get rid of copyright and find out. :)
Seriously, you want proof that these would still be created without IP?
Let's start with books. In the US, prior to copyright law being enacted there were plenty of books being published.
Music has been around for thousands of years and copyright has only been around for about 300, so obviously we would still have people making music.
As for movies, look at how Hollywood got it's start. The studios moved out west to avoid Thomas Edison's stranglehold of the major patents relating to motion pictures, including that for raw film.
The idea that creative people wouldn't create if there wasn't intellectual property protections in place really seems silly to me when you look back upon history.
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Think about that for a minute.
For the first nine years of copyright law in the US less than 5% of authors even bothered to register their works in order to get copyright protection.
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You don't need to. People can create all of those things right now and dedicate them to the public domain, revoking their rights in them. Nothing is stopping anyone from attempting to use Mike's alternative, free business models. Get back to me when those works, based on free, are more than just the occasional blip.
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You can't "dedicate them to the public domain". Everything created is copyrighted from the moment it's fixed in a tangible medium in the US and most other countries and lasts, well, pretty much forever. You can only choose not to enforce your copyrights.
Look, obviously your mind is already made up about whether art would exist without IP since you keep trying to move the goalposts in our discussion here. And that's fine. You believe whatever you want to. Personally, I know that humankind will always create for the simple joy that creating brings. History show us this.
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I haven't moved the goalposts at all. I acknowledge that works will always be created, whether protected or not. We agree on that. I'm saying that to have more and better works, you need to protect them. We've had IP for a few hundred years, and humankind has advanced exponentially as a result. You want to take us back to a time when authors and inventors have to beg for money. No thanks.
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Correlation doesn't equal causation.
I would put forth that technology has advanced humankind and human knowledge more than IP has.
You want to take us back to a time when authors and inventors have to beg for money. No thanks.
No. Actually I'm of the copyright reform camp. Opt-in copyright with a comprehensive database of the copyright status of works going forward. 14 year term with renewal of another 14.
Realizing that this, of course, would involve compromise, I start at the "abolish copyright end" of the spectrum in order to reach a bargain somewhere near where I would actually like to end up.
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How exactly does one dedicate their works to the public domain then? The only way I know is by a CC license, which depends upon copyright law in order to be enforced.
If you mean "abandon" as in "not enforcing your copyrights", then we agree, but it's still under copyright regardless.
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Re: Re: Re: Re: Re: Re: Judges create laws
They were common law, not codified law, so they kinda existed, but not in the books. Thus, no code, legislating from the bench. Legislation leads to codified law, after all. This is what common sense and logic tells us.
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Copyright doesn't grant rights.
It instead takes away rights from everyone else.
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If you mean "abandon" as in "not enforcing your copyrights", then we agree, but it's still under copyright regardless.
I forget the two-part test at the moment, but it's something like intent plus overt act. Too lazy to look it up (as are you, apparently). It usually only comes up as a defense. If A sues B for infringement, B wins if it proves A abandoned the rights sued on.
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Re: Re: Re: Re: Re: Re: Re: Judges create laws
Not codified by a legislature, but nonetheless the law. Case law = real law that actually applies in the real world.
Thus, no code, legislating from the bench. Legislation leads to codified law, after all. This is what common sense and logic tells us.
All three branches of government make law. Legislative codes are but one source of law. Customs make laws as well. The thing we all learned in grade school that only legislatures make laws was wrong.
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Yep, just like giving you the right not to be punched in the face takes away my right to punch you in the face. So what?
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Ok. I know what you are talking about now. Here's a relevant passage from Wikipedia that describes it fairly well: Abandonment of Copyright
But, come on. How does this make any sense for a creator who wishes to gift their work to the public domain? In order to make the abandonment of my copyright *legal*, I would have to:
Step 1: Make my intent know with an overt act such as putting it up for download with a message: "Here's my gift to the public domain - take my stuff"
Step 2: Sue someone for violating the copyrights I voluntarily gave up. (huh?)
Step 3: Have the person I sue bring up the abandonment defense. (do I use mental telepathy for that?)
Step 4: Have the court declare my stuff abandoned, something that may or may not happen, regardless of my wishes, in our current legal environment.
Yeah. That's efficient, isn't it?
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Yes. Very simple. But my point is that it still won't *legally* be in the public domain. It still remains under copyright.
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No. It will then legally be in the public domain. I really don't understand your argument. You seem to think that if you label something as CC-licensed, then that labeling changes the copyright status of the work that is labeled--for example, it goes from all rights reserved to some rights reserved. Well, the same thing happens when you label a work as being in the public domain. That overt act places the work in the public domain. If someone were later sued for copyright infringement for using that work, they would just point to the label that indicated the author had dedicated it to the public domain. It's really simple. You're just making it hard. Label it as CC-licensed, then it's CC-licensed. Label it as public domain, then it's public domain.
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It's really not in the public domain. That is the point I am making.
From Wikipedia:
Basically there is no legal mechanism to revoke your copyrights. You can claim that you have given it to the public domain all you want, but that doesn't make it legally true.
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What I'm trying to explain to you is that you can renounce your copyrights all you want, but it still doesn't mean you have legally renounced your rights. There is no mechanism in copyright to do that legally. Even if you renounce your rights and abandon your work, you still hold the rights anyways. Even with CCO license, where you waive all copyrights, you are still legally the rights holder, you are simply agreeing (with a legally binding document) not to enforce them.
I understand what you are saying about abandoning property rights in general, but I have found nothing in copyright law that says you can explicitly do that. Have you?
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No it's not easy. Greater scholars than you and I combined have wrestled with this.
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It's not a matter of questions down the road at all. It's that there is no recognized legal mechanism to actually abandon a copyright.
As I mentioned, you have the RIGHT to abandon your ownership. No one can FORCE you to own a copyright. Abandoned is abandoned.
You are right, no one can force you to own a copyright, but the only alternative that currently exists is to transfer that copyright to another entity.
You can't just make the copyright magically disappear into thin air, there's no legal way to do that with our current laws.
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Prior to the Copyright Act of 1976 the default was that works went into the public domain. You had to proactively register the works to gain copyright protection.
With the 1976 Act Congress made all works copyrighted from the moment they are fixed to a tangible medium and left no way for works to go into the public domain until after the copyright term ended, which of course keeps getting extended out further and further. It's Congress who left us without a way to place works directly into the public domain.
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The very wikipedia article you're quoting also says this: "Sometimes people wish for a piece of their own work to be freely available to everyone to use with no strings attached, and put the work in the public domain. This isn't very hard to do � the copyright holder merely has to make a statement that they release all rights to the work. Once this irrevocable act is complete they no longer have any power over how the work is used since it is then owned by the public as a whole."
The article says that Lessig says it's difficult, but offers no citation or link. I would like to read the exact thing that he said in context. It's not provided. The article also says there's a "controversy regarding the legality of abandoning a copyright on a work" but offers no citation or link. Again, what controversy? Exactly what is the source of that claim?
Sorry, but a couple FUD-filled, unsourced sentences copied from wikipedia mean NOTHING. You have not, and cannot, actually show me that there's any difficulty whatsoever in abandoning a copyright. It's just anti-copyright FUD nonsense. Sorry.
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The controversy is that you making this statement releasing your copyrights has no actual legal affect on the copyrights. There would be nothing stopping you or your heirs from suing people who have used your works, even if they believed them to be in the public domain. That's where the abandonment defense would come in. If you had actually revoked your copyrights, you or your heirs wouldn't have standing to sue in the first place.
The article says that Lessig says it's difficult, but offers no citation or link. I would like to read the exact thing that he said in context. It's not provided. The article also says there's a "controversy regarding the legality of abandoning a copyright on a work" but offers no citation or link. Again, what controversy? Exactly what is the source of that claim?
Not sure. I looked a bit, but couldn't find a relevant citation myself (There is a lot of Lessig words to search through out there).
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If your definition of "has no actual legal effect" = "nothing stopping you or your heirs from suing people," then you are only saying that NOTHING ON THIS EARTH has "actual legal effect." Sorry, but this is absolute 100% bullshit FUD.
The fact that you cannot identify even ONE SINGLE HUMAN BEING since the dawn of copyright who had any difficultly whatsoever in abandoning a copyright should tell you something.
Put down the Mike-Masnick-copyright-is-the-devil-and-I-stop-thinking-critically-whenever-it-comes-up Kool Aid. Sheesh.
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