Defacing “The Face”?

Originally posted 2010-05-27 23:50:36. Republished by Blog Post Promoter

Genius!  Plus studliness!

Yes, in one post on his Licensing Law Blog, Richard Bergovoy brings together some of my favorite things:

What do Jimi Hendrix, Elvis Presley, Marilyn Monroe, and Princess Diana all have in common?

If you guessed that all of them are dead celebrities, you are only half right.

More importantly, all of them were subjects of messy postmortem lawsuits against sellers of celebrity-branded goods.

Because of great variations in the laws, as well as “favorite son/daughter” influence on local courts, using the name or image of a dead celebrity to sell products without a license is risky business.

Doing so may put a businessperson in violation of two categories of legal rights, rights of publicity laws and trademark laws.

The more direct threat is the law of rights of publicity. Generally speaking, rights of publicity laws prohibit the commercial use of the name (and usually image and signature) of another person without his permission. But that is about all one can say with certainty — the laws are state-based, not federal, and beyond the basics, there are great variations in the laws of the states that recognize rights of publicity. In fact, it is not even certain how many states do recognize rights of publicity, with estimates ranging from the mid-20’s to close to 50.

One of the biggest variables among state laws is whether the right of publicity survives the celebrity’s death, and if so, for how long. States that characterize the right of publicity as a personal right naturally conclude that it is extinguished on the person’s death. New York is one such state. States that characterize the right of publicity as a property right, like New Jersey, naturally conclude that it survives the person’s death, and is descendible to her survivors.

That seems simple enough. So where is the problem?

  • He explains it there.  But all that’s just a parlor trick, compared to Bergovoy’s next one–time travel as only the great ones can bring us!  We now proceed to explain the above image–an exhibit from a post-mortem U.S. District Court kvetch just filed, courtesy of Richard (the only attorney I know who does not restrict his relativistic time-space warping to doing timesheets):

Thank you, Albert Einstein, for making our point.

Great minds think alike.

Unknown to The Licensing Law Blog, one day before we posted “The Uncertain Law of Dead Celebrity Goods,” representatives of the estate of Albert Einstein sued General Motors Company for an advertisement featuring the head of the Father of Relativity Theory photoshopped onto the ripped, tattooed naked torso of an underwear model, with the caption, “IDEAS ARE SEXY TOO.”

Yes, the long-gone St. Albert Einstein, who in life brought us unimagined scienterrific understanding of the vastness of the physical cosmos and the rubbery-slimy nature of time itself, settles for the far more mundane in death:  Dreary, avaricious civil litigation filings over the right of publicity, which the dead may assert in California–yes, California, that state so closely associated with the all-time-genius-of-history-guy, right?  Of course California.

So the famous brain sues the famous corporation over the famous face.  Now, read the below, and tell me what to think, unless you think I just already should think what Richard Bergovoy thinks:

One more thing.  How does Richard know that’s really a “photoshop”?  All really sharp Jewish guys look like that, I’m telling ya.

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Author:Ron Coleman

I write this blog.

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2 Responses to “Defacing “The Face”?”

  1. May 28, 2010 at 12:06 am #

    If the relevant fact is supposed to be that the public is misled by the ad into thinking that Einstein endorsed the product in question, I certainly was under no such impression; I am well aware that he died over half a century ago and is in no position to endorse anything. I regard images of long-deceased public figures as being part of the common culture, not owned by anybody.

  2. tim maguire
    May 29, 2010 at 4:52 pm #

    FWIW, I agree with Dan’s last point–when used as a representation of brilliance, Einstein should (does? not my call, but should) be considered a cultural icon. And as such, not protectable.

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