Hebrew University of Jerusalem v. General Motors LLC, 2012
WL 907497 (C.D.Cal.)
GM used an image of Einstein as part of an ad for its 2010
Terrain vehicle. The image was licensed
from Getty and appeared in People’s
Sexiest Man Alive edition. Hebrew
University, claiming to own Einstein’s right of publicity, sued for violations
thereof and for violations of the Lanham Act and California state law on the
theory that the ad created a false impression of endorsement by Einstein’s
estate and/or Hebrew University.
However, it submitted no evidence of false endorsement.
The court denied summary judgment on whether Hebrew
University owned Einstein’s right of publicity and trademark rights. Hebrew University owned his literary estate,
and he might have intended to give it his right of publicity had he known there
would be a postmortem right of publicity; this was an issue of fact for the
factfinder. In the process, the court
ruled that there was and had been a postmortem right of publicity under New
Jersey law, regardless of whether the celebrity exploited that right in
life. This part of the opinion is
important but detail-ridden and so I’m not going to cover it in depth, but
people who regularly encounter right of publicity claims for deceased
celebrities should probably take a look.
One interesting footnote points out that, where the right is a creature
of common law, it is very hard to figure out its appropriate duration, though
McCarthy likes borrowing from copyright law—even though the justification for
the right is not plausibly incentive-based.
Unless the New Jersey duration is longer than 50 years postmortem,
protection would have expired before GM’s ad ran.
The court then granted summary judgment to GM on the Lanham
Act claim. GM emphasized that minimal
association existed between Hebrew University and the claimed mark (which was
not defined in any detail; presumably Hebrew University was arguing, contra ETW v. Jireh, that any image of Einstein
was its “mark”). This reduced the
likelihood that consumers would falsely believe Hebrew University endorsed
GM. There was no express or even implied
statement of endorsement of GM’s vehicle.
Instead, Einstein’s face was superimposed on someone else’s body to play
with the “Sexiest Man Alive” theme and convey that the Terrain was smart but
sexy.
While no single factor is necessarily dispositive, Hebrew
University failed to identify any record evidence establishing a genuine
dispute of material fact on confusion.
It simply pointed to the ad itself.
Even if the allegation that the ad “implies and creates the false
impression that Dr. Einstein's estate and/or [Plaintiff] were associated with
the Advertisement” were plausible—which the court specifically indicated was
“doubtful”—this was a summary judgment motion, not a motion to dismiss. The court declined to sift through the record
for other evidence supporting Hebrew University’s case.
Assuming that Einstein’s image was a strong mark, the ad
contained an identical image. But the
“goods” at issue were unconnected (where Einstein’s “goods” were “the reasons
for or source of” his fame). “At most, the Terrain draws its value from Einstein's
image only indirectly and remotely; the ad was not for an Einstein product.
Einstein is famous largely due to his towering intellect, a point emphasized by
the "e=mc 2" tattoo sported by the Advertisement's Einstein
doppelganger.” True, the ad suggests
that the Terrain is smart but sexy, but “So what? Einstein = smart. Terrain =
smart. Ergo, does Einstein = Approval of Terrain? In short, any link between
the ‘hunky’ model in the ad, Einstein's image and the vehicle is too weak to
create a link between two ‘goods.’”
(Getting rid of this claim would, by the way, be much easier with a
materiality analysis!)
The other confusion factors warranted summary judgment.
There was no evidence of the strength of the association between the mark and
Hebrew University. (Technically, after
Congress reversed Anti-Monopoly, the question is whether there’s an association
between the mark and any single source, known or unknown, but I strongly doubt
that makes any difference here, since Hebrew University apparently made no
effort to show that Einstein’s image was recognized as a mark rather than
recognized as Einstein.) There was no
evidence of degree of care, which for an expensive vehicle was likely to be
high. There was no evidence of intent to
confuse consumers about Hebrew University’s endorsement, or of actual
confusion. Etc.
The same result of course followed on Hebrew University’s
California UCL claim, which required likely consumer deception.
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