Are Publicity Rights Sexy Too?

On Friday, a Federal Judge refused to dismiss General Motors LLC (GM) from a lawsuit over the use of Albert Einstein’s image in magazine advertisements, ruling that an Israeli University might have inherited the genius’s publicity rights.

Last year, The Hebrew University of Jerusalem (HUJ) sued GM in federal court for trademark infringement, unfair competition, and misappropriation of Einstein’s rights of publicity. According to Forbes magazine, Einstein is the fourth highest grossing deceased celebrity property, earning about $18 million annually. HUJ claimed the company wrongly exploited Einstein’s publicity rights with a series of advertisements for GM’s Terrain trucks that ran in People Magazine’s 2009 Sexiest Man Alive issue under the slogan “Ideas Are Sexy Too.” The controversial ad, depicted below, featured Einstein’s face on a fit physique.

Einstein’s will and trust left his literary property to stepdaughter Margot, who assigned them to the school in 1982. But, as we learned Friday, it is unclear whether his name and likeness were intended to be a part of the inheritance. In denying GM’s motion for summary judgment, the California District Court stated that “there is a genuine dispute concerning whether Einstein would have intended his right of publicity and trademark rights to be included in the trust.”  This “probate intent” doctrine is a creature of New Jersey law- also a state where rights of publicity are a form of property and survive the death of the owner, which is probably why the court struck down GM’s argument that Einstein had no post-mortem rights to bestow. The Lanham Act and state unfair competition claims were dismissed because the plaintiffs could not meet the heightened standards of proof regarding consumer confusion. Going forward, the parties will seek to examine the circumstances surrounding the execution of Einstein’s will. Did the physicist intend his likeness to be sexy too?