Lets use a specific hypothetical. Say I have a picture of Albert Einstein that I took on a visit to Princeton many years ago. I am now about to launch my new breakfast cereal, Cosmic Crunch. Can I take MY image of Einsetein, and photoshop it onto the box so it shows him pointing at a piece of cruchy goodness and saying “they’re relatively tastey” and print up a few million copies?
WAG, IANAL. As the photographer, you’d own the picture and the publishing rights to it, as well as photography credit. But if you’re using his picture for a commercial venture you’d have to clear it with the Einstein family estate.
It depends. It used to be that dead celebrities did not have an expectation of privacy. Today, however, estates are claiming rights that did not once exist and cases are working their way through the court system.
California law has established a specific celebrity likeness use right, but I believe that the celebrity must both live (or have lived) in California and register for the purpose. Neither of these conditions applies to Einstein.
Whether you could get away with applying a specific advertising claim to him, however, might be dicey under a number of statutes.
Although I understand you’re asking a hypothetical, this really is one of those problems that call for an expert lawyer’s opinion.
It depends what you’re using the picture for.
The creator of a photograph owns the copyright to the photograph. If you’re displaying it merely as a photograph, perhaps in a book or in an exhibit that includes a bunch of artistic works, then you don’t have to get permission.
The person or his estate owns the right to publicity, which means that if you’re using the image or likeness or identity of a person in connection with commercial goods or services in a manner that would imply sponsorship or endorsement, then you have to get permission.
In the specific case of Einstein, it’s now Bill Gates - via Corbis - who controls the image rights as far as commercialisation is concerned.
Einstein’s estate after his death was managed for many years by his former secretary Helen Dukas and his Princeton friend Otto Nathan. Over the years there was a fair amount of muttering from historians over Nathan’s protective attitudes, with it being felt that, while well intentioned and devoted to what he clearly had come to see was his mission in life, he’d become obstructive. Oddly, however, the one area where Nathan seems not to have tried to exercise control was over the use of Einstein’s image in advertising. (This has had the useful unintended effect that there’s an awful lot of old ads featuring him out there; that’s all been prime material for academics writing about public perceptions of him.)
Enter Roger Richman of the Roger Richman Agency. (The link about Einstein on that homepage seems to be broken.) He’s made a career out of defending celebrity image rights. Coincidentally, his father had run the Anti-Defamation League in the 1930s and knew Einstein via their work on behalf of Jewish refugees from Germany. He’d also known Otto Nathan, who’d also been active in the same area. In 1984, Richman thus lobbied Nathan for the right to police Einstein’s image and persuaded him that it was both desirable and possible to do so. The agreement that was reached was that any income would go to the Hebrew University in Jerusalem. This had been one of Einstein’s favourite causes and had been singled out in his will in various ways.
Over the years, Richman has routinely claimed that Einstein has been their most wildly successful “client”. Whether this is true or not, I’ve no idea - this is a Hollywood lawyer we’re talking about, after all.
Earlier this year, his agency was taken over by Corbis and so they now control the relevant rights.
What type of law governs this use? Copyright? Trademark? Something else? How long is this protection good for? Does it expire? Is it just a likeness? What about Einstein Bros. Bagels? All those people that sell posters?
I believe Tennessee also has a fairly powerful celebrity likeness law. Priscilla Presley lobbied for it after Elvis died and she realized the most valuable asset the family owned was his image.
This isn’t exactly copyright, but it’s something like it. While a person is living, they have absolute control over the use of their likeness for commercial purposes. If you take my picture and use it on a postcard without my consent, I can sue you because you’ve possibly damaged my image and I may not be able to use it in the future. In the past, a person’s right to protect and exploit his own image died with him. However, California and Tennessee, which have fairly large entertainment industries, and others have enacted laws that extend that protection to the person’s estate. AFAIK, this protection is eternal, because estates don’t die.
If I remember my communications law course correctly, this extends to any identifiable part of a person’s image. Thus, pictures and voice are covered. (That’s why you hear boilerplate to the effect that voices are impersonated – it’s a loophole.) The people who make and sell merchandise of Einstein license the image; that is, they pay a fee for the right to use it. Einstein Bros. Bagels has no connection to Albert, so they can use the name with impunity.
Robin
Of all Einstein photos? Even the one taken by the OP (as described in his post)?
Cite, please.
I am not an expert in this area of the law, and time doesn’t permit me to research it at the moment, but I believe that this is generally accurate.
Those who have responded here, claiming that an estate always (or even generally) has to give permission before use of an image in advertising are incorrect. As said, some states are changing this general rule somewhat.
You’re misunderstanding the post. Re-read it. The Roger Richman Agency controlled the rights to using Albert Einstein’s name and image (from any source) for commercial purposes. The Roger Richman Agency was bought by Corbis.
Estates hold image rights forever? So I can’t market “Beethoven Beer” with an engraving of Ludwig on the label without tracking down his heirs?
This is madness.
A photographer’s rights in a photograph are governed by copyright law.
Right of publicity grew out of the common law of privacy. As others have mentioned, it has been encoded in statute in some states. In the common law there were several causes of action that fell under the category of privacy –
– False depiction/false light - depicting someone in a manner that would offend a reasonable person
– Misappropriation of a person’s name or likeness or identity without consent for commercial benefit
– Unwanted intrusion into solitude
– Public disclosure of private and embarrassing facts
There are at least two different sets of rights here. The OP holds only the copyrights in the creative work. The OP does not hold right of publicity (if there is any) regarding the person’s identity.
This is not exactly right. If you are in public, you can’t prevent someone from taking your photograph, but you can prevent him from using your identity to imply sponsorship or endorsement of a commercial venture.
More precisely, Einstein Bros. is not using the name, likeness, or identity of Albert Einstein to sell bagels. Presumably, the founders of the company are also named Einstein.
If, however, the bagel company started a new advertising campaign that somehow implied a connection with Albert Einstein – like a fuzzy-haired spokesman in a lab coat or a German-accented voice – then they could be in trouble, no matter the legitimate origin of the name “Einstein Bros.”
Not necessarily.
Perhaps. You’d have to hire a lawyer to analyse the law in your jurisdiction.
Even if it were true, I don’t think it is necessarily madness. I can easily imagine a government wanting to protect a nation’s cultural heritage and banning the use of historical personages to sell products.
Where I live, there’s an “Adams Bank” with an image of John Adams incorporated into the logo. Every time I see it, it seems an unnecessary cheapening of the identity of John Adams. Now, it would have been different if John Adams, the president, had actually founded the bank himself, but I doubt that that’s the case. I’d be in favour of a law that prohibited commercial enterprises from using the identity of dead persons for commercial purposes without permission.
The U.S. Supreme Court in the 1977 case Zacchini v. Scripps established two key concepts that are still in effect today. First, the Supreme Court held that each state had the power to enact right of publicity statutes that could be crafted to protect not only a person’s image, but their name, voice or other singular characteristics. Second, The Supreme Court explained in Zacchini that First Amendment interests (for example, journalism) may override the right of publicity.
The California Supreme Court, in Comedy III Productions, Inc. v. Saderup, held that depictions of celebrities “amounting to little more than the appropriation of the celebrity’s economic value are not protected expression under the First Amendment.”
About half of the states have right of publicity laws, and they vary from state to state. For example, while some states hold that the right of publicity terminates upon a person’s death, at least one state allows the right of publicity to extend up to 75 years after the death of the individual. In the other states, common law is used in tort cases.
More on Right of Publicity:
The Publishing Law Center
Cornell Legal Information Institute
Albert Einstein and Einstein are registered trademarks of the Hebrew University of Jerusalem. Presumably they’re the folks you’d want to talk to.
No, no, no, no, no, no, absolutely not.
First of all, trademarks are not the issue here. The issue is the use of a photographic image of Albert Einstein. That is completely different from trademarked terms like “Albert Einstein” and “Einstein.”
Second, even if trademark law did apply, trademarks are limited by geography and subject matter.
So, a registered trademarked in Israel will not have any effect on use that does not reach Israel.
And when you say that the university in question has a registration, you have to say what the registration is for. You can’t just reserve for yourself all conceivable uses of a term, especially if that term consists solely of a personal name.
From the U.S. Patent and Trademark Office:
Word Mark: ALBERT EINSTEIN
Goods and Services: IC 041. US 100 101 107. G & S: Educational Services — Namely, Conducting a Medical School [and Hospital].
First Use: 1955
First Use in Commerce: 1955
Serial Number: 73217760
Filing Date: May 30, 1979
Registration Date: November 9, 1982
Owner: (REGISTRANT) Yeshiva University (a New York corporation) 500 W. 185th Street New York NEW YORK 10033-320
Renewal: 1st renewal 12 March 2003
Word Mark: ALBERT EINSTEIN
Goods and Services:
IC 009. US 021 023 026 036 038. G & S: Computer software, computer hardware and peripherals, mouse pads, computer games, video games, prerecorded audio and video tapes and discs, audio and video recorders and players, calculators, children’s educational software, decorative magnets, eyeglasses, sunglasses, eyeglass frames, laboratory equipment, magnifying glasses, metal detectors, personal digital assistants, radios, remote controls, telephones, telescopes, electronic testers, cameras
IC 014. US 002 027 028 050. G & S: Clocks, watches, non-monetary coins, jewelry, pen and mechanical pencils of precious metal
IC 016. US 002 005 022 023 029 037 038 050. G & S: Address books, prints, agendas, decals, stickers, appointment books, art paper, art prints, bookmarks, blank journals, pens, pencils, writing instruments, book covers, printed instructional, educational, and teaching materials, printed invitations, books, bumper stickers, calendars, cards, check books, check book covers, pencil cases, spiral notebooks, crayons, drawing instruments, drawing paper, educational books, gift cards, globes, greeting cards, folders, wallet folders, ring binder files, writing pads, insect habitats, note paper, paper teaching materials, paper weights, photograph albums, stationery, photographs, postcards, posters, study guides, trading cards, wrapping paper, paper bags, paper and cardboard cut-out figures for use as wall decorations, life-size standup cardboard cutouts, pen and pencil holders, three dimensional models for educational purposes
IC 018. US 001 002 003 022 041. G & S: All purpose sports bags, backpacks, bookbags, handbags, luggage, school bags, shoulder bags, umbrellas, wallets, credit card cases
IC 020. US 002 013 022 025 032 050. G & S: Non-metal key chains; busts, figurines, sculptures, ornaments and desktop statuary of bone, plaster, plastic, wax and wood; mirrors, handheld mirrors
IC 021. US 002 013 023 029 030 033 040 050. G & S: Busts, figurines, sculptures, ornaments and desktop statuary of crystal, china, earthenware, glass, porcelain and terra cotta; mugs, cups, containers for household or kitchen use, cookie jars, dinnerware, flower pots, glass beverageware, non-metal decorative boxes, salt and pepper shakers, vases
IC 025. US 022 039. G & S: Clothing; t-shirts, sweatshirts, shorts, pants, shirts, dresses, suits, socks, footwear, headwear, pants, bandanas, neckwear, coats, jackets, beachwear, undergarments
IC 028. US 022 023 038 050. G & S: Games and playthings, educational products, sporting articles; action figures, bobble head dolls, card games, board games, action skill games, arcade games, baby multiple activity toys, bathtub toys, bubble making wand and solution sets, pet toys, chess sets, children’s multiple activity toys, Christmas tree decorations, costume masks, crib mobiles, electronic educational game machines for children, exercise equipment, flying discs, golf clubs, infant development toys, infant toys, kaleidoscopes, kites, magic tricks, marbles, mechanical toys, musical toys, party games, party favors in the nature of small toys, play figures, playing cards, puppets, puzzles, sand toys, skateboards, snow globes, stuffed toys, sport balls, toy models, toy butterfly nets, toy rockets, toy vehicles, toy watches, toy model hobbycraft kits, water squirting toys, wind socks, wind-up toys, yo-yos
IC 041. US 100 101 107. G & S: Educational and entertainment services including educational demonstrations and programs, and providing courses of instruction at the primary and secondary level and the distribution of course material in connection therewith
Serial Number: 78273213
Filing Date: July 11, 2003
Owner: (APPLICANT) The Hebrew University of Jerusalem (an Israeli corporation) P.O. Box 34165 Givat Ram Jerusalem 91341 ISRAEL