Al and Marilyn*
Film lovers over forty may remember the scene in Nicholas Roeg’s 1985 Insignificance where “The actress,” who bears an uncanny resemblance to Marilyn Monroe, explains the theory of relativity to “The Professor,” whose wild hair leaves no doubt as to his identity. One wonders whether Roeg could make his film today with impunity, because Albert and Marilyn have more in common than relativity; they have in common celebrity.
Several years ago I had a book in press, Everything’s Relative and Other Fables From Science and Technology. Given the title, the publisher’s house artist not unreasonably designed a cover that included a photographic image of Albert Einstein. The publisher (Wiley) had properly licensed the photo from Bill Gates’ firm Corbis. One would have thought that would end the matter.
One would have thought. Six weeks before publication I received a frantic email from the editor. Albert was to be stricken from the cover. Why? For fear of being sued by the “Einstein estate.” To a physicist who grew up miles from Einstein’s home in Princeton, New Jersey, the phrase “Einstein estate” rang oddly. Albert died in 1955; his children and literary secretary are all dead. What Einstein estate? The editor didn’t know; evidently the attorneys did and despite my strenuous protests, Einstein vanished to be replaced by a locomotive and E=mc2.
A little investigation revealed that indeed no “Einstein estate” existed, but that the Hebrew University of Jerusalem and Princeton University Press owned the rights to all of Einstein’s writings which were not copyrighted by anyone else. Moreover, HUJ had authorized Beverly Hills’ Roger Richman Agency to license Einstein’s image for promotional purposes and to “prevent unauthorized use of the likeness and image of Albert Einstein.” Yes, a Hollywood agency specializing in protecting the rights of movie stars claimed to have exclusive rights to Einstein (and Sigmund Freud).
It wasn’t clear that Richman could prevent the use of a legally obtained photograph on a book jacket, so I phoned the agency and asked point blank whether use of Einstein’s photo on a book fell under its “jurisdiction.” The spokesman asked if the book was about Einstein. “In part,” I answered, to which he replied that I should follow the publisher’s attorneys’ advice, whatever that happened to be. I interpreted this to mean he didn’t know. While the cover was still in flux, I had the editors send Richman the chapters devoted to Einstein. What was there to lose? Eventually Richman answered: “We do not wish to participate in the publishing of the book entitled Everything’s Relative,” which presumably translates as, “we’re not sure we can sue you now; just wait.”
At issue, you see, is what has become known as the “right of publicity,” a.k.a. “right of celebrity.” A celebrity is entitled to financial gain from use of his or her image or likeness, and photographers must obtain releases before publishing such images. Complicating matters is that state, not federal, law governs publicity. In most common-law states publicity rights die with the celebrity, but in other states the rights are “descendible.” In California, post-mortem rights extend for seventy years (Hollywood) and in Tennessee, in perpetuity (Elvis). New Jersey, where Einstein resided, is a common-law state, which apparently means that New Jersey is so short of celebrities that no one has bothered writing down any statutes. There are, however, precedents. The most widely cited case took place in 1984 when a New Jersey court held that an Elvis impersonator violated the rights of Elvis Presley Enterprises. Celebrities and their rights do exist in NJ; the state, though, has not yet established a duration for prohibition on impersonating the King.
What of the Person of the Century? Several lawyers gave me several opinions: 1) The use of Einstein photos on a book jacket could be considered advertising (magazine covers are) and Richman might stake a claim; 2) As long as the book was about Einstein (several chapters) there should be no problem; 3) As long as the copyright was cleared from Corbis we were cleared too. A representative from Corbis said that a photo used inside the book was safer than on the cover.
Confused? Welcome. To muddy the waters further, there is the question of jurisdiction. Richman, in an attack on a website posting Einstein quotations, acknowledged that New Jersey law is the relevant one, but one lawyer thought that California law might apply because California is the location of the executor. Actually, Jerusalem is. I eventually queried the Einstein Archives of the Hebrew University by what law could they restrict the use of Einstein’s image and received no reply.
Richman’s tactic, of course, was one of “virtual litigation”: The agency flexes its muscle, publishers get cold feet and back off rather than fight out a real court battle. As a result Richman and HUJ accrue a monopoly on Einstein. In the case of my publishers it succeeded, but not without a large dose of irony: Shortly after my book appeared, the Richman agency was bought by Corbis, the firm that had authorized the use of the photo to begin with.
The battle over Einstein is a mere skirmish next to the one over Marilyn Monroe. Originally handled by Richman, Monroe’s images until recently were licensed through the agency CMG Worldwide and Monroe’s estate, MMLLC. The latter is controlled by Anna Strasberg, widow of Marilyn’s acting coach Lee Strasberg, to whom she willed the bulk of her property. Strasberg and CMG have accumulated over $30 million marketing Marilyn items.
In 2004, CMG and MMLLC sued the children of four photographers who had taken photographs of Marilyn during her lifetime; the children continued to license the photos on various items, including calendars, handbags and wine bottles. CMG, headquartered in Indianapolis, alleged that the sale of t-shirts bearing Marilyn’s image violated Indiana statutes, which recognize publicity rights for a full 100 years after death. One inevitably wonders whether CMG’s presence in the state and the nearly infinite monopoly period were coincidental.
But the photographers’ heirs did not roll over. They countersued in New York and California, claiming that Monroe was a New Yorker and her publicity rights expired upon death. In May 2007 judges in both states found for the photographers on the grounds that publicity laws simply did not exist in New York, California or Indiana at the time of Monroe’s death. Property that did not exist at the time of death cannot be transferred, including publicity rights.
CMG and MMLLC struck back. Since no law existed at the time in question, why not create one? In 2007 Sheila Kuehl (a former actress) of the California senate, spearheaded the assembly to gut stem-cell bill SB 771 and replace its contents by a bill whose avowed purpose was to “abrogate” the NY and CA decisions. The legislature passed the law, retroactively assigning publicity rights to celebrities who died before 1985.
The saga didn’t end there, however. In September 2008, a NY federal judge summarily ruled in favor of the photographers’ children. The court recognized that the California law specifically allowed retroactive transfer of publicity rights to spouses and children of the deceased but not to other beneficiaries. The bottom line: Strasberg and CMG do not own the publicity rights to Marilyn.
That’s where things stand at the moment; stay tuned.
So, where does all this leave us? About the only thing that is clear is that money, and money alone, is the name of the game. According to a lawyer quoted by Discover magazine about my case,* “Every living person has the right to protect his or her own image,” but according to other legal eagles, that right is reserved for celebrities: In which case, if a colleague snapped a photo of me and Al debating quantum mechanics at a scientific conference, I might have to license his picture from Corbis, but he wouldn’t have to license mine. For that matter, does Corbis own the rights to the photos in the Lotte Jacobi Archive at the University of New Hampshire, which Einstein gave to Jacobi? With the CA law in force, if impersonating Elvis Presley is illegal, should director Roeg be sued retroactively and are playwrights henceforth banned from writing comedies about Bill Clinton? It is left as an exercise for the reader to construct further legal absurdities.
The one other thing that is clear is that laws of the CA type are dragging us toward the “French” model, where an executor, nine times removed from the deceased, owns all the rights. Long ago we entered the realm of the ludicrous. If one believes the declarations page of the Dover Memoirs of Hector Berlioz, the copyright is owned by the executor of the estate of the fellow who in 1932 published a revision of the 1884 translation of the 1870 original, which appeared after the composer’s death and for which he never received a sous. Is this to be the right of celebrity, which unlike a memoir is not even the creation of an artist but conferred upon the personality by the public? The thought that a century from now a Paris Hilton impersonator could be sued by her estate is not only peculiar but frightening.
* An earlier version of this post was published by US #1 newspaper, Sept. 14, 2005.
* Discover magazine, online version, March 5, 2008.