Hebrew University of Jerusalem v. General Motors LLC
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Full Opinion
Proceedings: IN CHAMBERS (No Proceedings Held)
This case is before the Court on the motion for summary judgment filed by defendant General Motors LLC (“Defendant” or “GM”). For the reasons set forth below, the Court GRANTS the motion in part and DENIES it in part.
I. INTRODUCTION
In 2010, Defendant used an image of Einstein as part of an advertisement (“Advertisement”) for GM’s 2010 Terrain vehicle. SUF ¶ 39. According to Defendant, its advertising agency licensed the image of Einstein from Getty Images (US), Inc. Getty Images engages in the business of
Defendant contends that the Advertisement did not state or suggest that Einstein or Plaintiff endorsed the Terrain, or even contain a reference to Plaintiff. SUF ¶¶ 42-46. Further, Defendant asserts that no reasonable reader of the Advertisement would read it to imply that Einstein or Plaintiff endorsed the Terrain. SUF
¶¶47, 48. Plaintiff disputes all of these facts, citing only to the Advertisement itself and arguing that the Advertisement implies and creates the false impression that Einstein’s estate and/or Plaintiff were associated with the Advertisement. SGI ¶¶ 42-48. This is merely argument. Plaintiff cites to no evidence in the record to create a genuine dispute regarding SUF ¶¶ 42^6.
Plaintiff The Hebrew University of Jerusalem (“Plaintiff’ or “HUJ”) claims that Dr. Albert Einstein (“Einstein”) had a right of publicity that survived his death. Plaintiff claims that he transferred that right to Plaintiff through his will, thereby giving Plaintiff exclusive control of Einstein’s name and likeness. Plaintiff asserts that Defendant’s unauthorized use of Einstein’s image violated the Lanham Act (15 U.S.C. § 1125(a)), California’s Unfair Competition Law (“UCL”), California’s right of publicity statute (Civil Code § 3344.1), and the common law right of publicity.
Defendant moves for summary judgment on all four of Plaintiffs causes of action. The parties agree that New Jersey law governs the issue of whether Einstein had a postmortem right of publicity. Defendant’s motion presents the following core issues: (1) whether there is a postmortem right of publicity in New Jersey; (2) whether establishing any such right depends on the decedent’s lifetime exploitation of that right; (3) if so, whether there is any evidence that Einstein exploited his right of publicity; and (4) if Einstein had a postmortem right of publicity, whether Plaintiff inherited the right through that Will.
II. LEGAL STANDARD ON SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) provides for summary judgment when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” The moving party bears the initial burden of demonstrating the absence of a “genuine issue of material fact for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it could affect the outcome of the suit under the governing substantive law. Id. at 248, 106 S.Ct. 2505. The burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
“When the party moving for summary judgment would bear the burden of proof at. trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co., Inc. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations omitted). In contrast,
When the moving party meets its burden, the “opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must-by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e). Summary judgment will be entered against the opposing party if that party does not present such specific facts. Id. Only admissible evidence may be considered in deciding a motion for summary judgment. Id.; Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988).
“[I]n ruling on a motion for summary judgment, the nonmoving party’s evidence ‘is to be believed, and all justifiable inferences are to be drawn in [that party’s] favor.’ ” Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505). But the non-moving party must come forward with more than “the mere existence of a scintilla of evidence.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Thus, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted).
III. FACTS
The following facts are undisputed, unless otherwise noted. Einstein was the preeminent physicist of his time and remains world famous to this day. Statement of Undisputed Facts (“SUF”) ¶ 1. Einstein died in 1955, while domiciled in New Jersey. SUF ¶ 6. He disposed of his property through a will (“Will”) dated March 18, 1950. SUF ¶ 7. Plaintiff argues that it inherited Einstein’s right of publicity through Article 13 of the Will, which in relevant part reads:
I give and bequeath all of my manuscripts, copyrights, publication rights, royalties and royalty agreements, and all other literary property and rights, of any and every kind or nature whatsoever, to my Trustees hereinafter named, IN TRUST, to hold the same for a term measured by the lives of my secretary Helena Dukas, and my stepdaughter, Margot Einstein.... Upon the death of the said Helena Dukas and the said Margot Einstein, this trust shall terminate, and thereupon all funds or property, if any, still held in this trust, including all accrued, accumulated and undistributed income and all literary rights and property, shall pass and be distributed to Hebrew University....
Doran Deck Exh. E at 12-13,14; SUF ¶ 8; SGI ¶ 8 (noting that the bequest includes the clause “of any and every kind and nature whatsoever”).
It is undisputed that no other provision in the Will gives Plaintiff rights in Einstein’s estate. SUF ¶ 10. Plaintiff argues that Article 14 of the Will, its residual clause, gave all unspecified property to
The Will provided that the Trust would terminate upon the death of Helena Dukas and Margot Einstein, whereupon all property in the Trust would pass to Plaintiff. SUF ¶ 9. In fact, the Trust was terminated by an agreement executed by Helena Dukas, Otto Nathan, Margot Einstein, and a representative of HUJ, effective January 1, 1982, conveying all property remaining in the Trust to Plaintiff. SUF ¶ 30; SGI ¶ 30 (noting the Trust terminated on January 1, 1982, not in 1981 as per SUF ¶ 30); Doran Decl. Exh. I at 92-107 (copy of agreement). Plaintiff apparently began asserting its right to control Einstein’s name and likeness in 1985. See Doran Decl. Exh. J at 127 (newspaper article noting HUJ had “hired an American licensing agent ... to legally end the .use of Einstein’s name or face in TV, magazine and newspaper ads.”).
Although Einstein lent his name to various charitable causes, there is no evidence that Einstein ever received any monetary compensation for his publicity rights or for the use of his publicity rights during his lifetime. SUF ¶¶2, 4, 5. Plaintiff nevertheless argues that Einstein “was aware of the value of his name and likeness” and exploited that value. Statement of Genuine Issues (“SGI”) ¶¶ 4, 5; Opposition (“Opp.”) at 4. Plaintiff gives four examples of what it contends are “numerous instances of [Einstein’s] exploitation-: (1) Einstein permitted an artist to create a portrait of him, which was “reproduced on postcards and widely marketed shortly after World War I”; (2) Einstein “deliberately exploited the publicity impact of his name to further causes he supported” (e.g., education in what was then Palestine); (3) Einstein “agreed that Frigidaire could use his name and endorsement” to market a particular model of refrigerator, after Einstein made changes in the text and requested that Frigidaire “make use of this testimonial in a tactful way, that is, to use it in your brochures ----”; and (4) Einstein permitted “his name and image” to be used for an award bestowed by the Institute of Advanced Study honoring achievement in the natural sciences. Opp. at 14-15. While this evidence supports the proposition that Einstein was aware of, and even “exploited,” his fame and influence during his lifetime, it nevertheless is not evidence that Einstein received compensation for his name or likeness, or for the use of his right to publicity in connection with any product, cause, or award.
The Wül did not specifically designate Einstein’s publicity or trademark rights for inclusion in the Trust. SUF ¶¶ 11, 12. Although this assertion is literally true, Plaintiff disputes this fact, arguing that through application of the doctrine of probable intent — a creature of New Jersey law — “the Will did designate ... Einstein’s publicity rights for inclusion in the Trust.” SUF ¶¶ 11, 12. The Court addresses the application of this doctrine in detail below,' but here it is sufficient to note that the doctrine’s function is to divine what the testator would have done, had he known of certain unforeseen circumstances. Hence, “probable” intent. Determining what Einstein would have done must be accomplished primarily through reference to what he actually did, especially by assessing the Will’s language and the facts and circumstances surrounding its creation.
Einstein’s friend, Nathan, helped draft the Will. SUF ¶ 19. In an affidavit (“Nathan Affidavit”), Nathan described the process of including the- Trust in the Will. SUF ¶ 20. Nathan made the affidavit on December 15, 1982 “at the suggestion and upon the .advice of my attorney, David J. Levy, Esq., to be held and used as circumstances may hereafter suggest, in relation to certain matters relating to the ‘Literary Property’ of the late Albert Einstein, at a time when I may be disabled, or no longer living, and the facts and evidence to be related [in the affidavit] may otherwise be unavailable.” Declaration of Ambika Do-ran (“Doran Decl.”) Exh. I at 46. Nathan died- in 1987. Dr. Otto Nathan, An Economist, N.Y. Times, Jan. 30, 1987, available at http://www.nytimes.com/1987/01/30/ obituaries/dr-otto-nathan-an-economist. html. The Nathan Affidavit refers to the Trust as the “Literary Property Trust” and notes that the “literary property” to which his affidavit relates “comprises the entire subject matter of the trust created by paragraph Thirteenth of the will of Albert Einstein____” SUF ¶ 21; Doran Deck Exh. I at 46, 47. Plaintiff disputes SUF ¶ 21, but apparently only to the extent that it does not include a complete recitation of the Trust property. SG111.21.
The Nathan Affidavit does not say that Einstein intended to include publicity or trademark rights in the Trust, rather than having them pass through the Will’s residual clause. SUF ¶¶ 22-23. It is undisputed that the Trust property (as stated in the Will and repeated by Nathan) is “all [Einstein’s] ‘manuscripts, copyrights, publication rights, royalties and royalty agreements, and all other literary property and rights, of any and every kind or nature whatsoever.... ” Doran Deck Exh. I at 46-47.
Attorney David Levy drafted the Will. SUF ¶ 24. In an affidavit, Levy described his understanding of the process leading to the creation of the Trust. SUF ¶25. Levy made his affidavit on December 15, 1982 “in order to amplify and supplement [the affidavit of] Dr. Otto Nathan, ... and like it to be held and preserved and utilized as circumstances may at any time require in relation to matters pertaining to the ‘Literary Property’ of the late Albert Einstein.... ” Doran Deck Exh. I at 109. Defendant claims that the Levy Affidavit in ¶ 15 “states that the overriding purpose of the Trust was preserving [Dr. Einstein’s] manuscripts, papers, and other literary property.” SUF ¶ 26. Plaintiff disputes this, arguing that the Levy Affidavit does not state in so many words that the purpose of the Trust itself was preserving his manuscripts, papers, and other literary property. SGI ¶ 26. This quibble is not material, for in discussing the terms of the will, Levy states that the degree to which the Trust’s principal should be invaded for the “ ‘care, comfort and welfare’ of the individual beneficiaries” must be considered “in light of the patent and overriding purpose of preserving the manuscripts, papers and other literary property for the Hebrew University....” Doran Deck Exh. I at 121.
Levy states in the conclusion of his affidavit that:
The intent of Albert Einstein regarding the trust of his literary property cannot be determined from particular words or*1027 phrases read literally and in disregard of the fundamental objectives and purposes pervading the document as a whole and which the will sought to achieve. The two dominant purposes here were, first, fulfillment of perceived obligations of reasonable support for his two charges (the individual beneficiaries) and second, the preservation of his Collected Works in perpetuity through the instrumentality of the Hebrew University and for the benefit of mankind.
Doran Deck Exh. I at 122-23 (emphasis added).
What Levy does not say, in any event, is that Einstein intended to include his right to publicity or his trademark rights in the Trust, rather than having them pass through the residual clause. SUF ¶¶ 27, 28. Nor is there evidence that the Trust received compensation for the use of Einstein’s publicity rights after his death in 1955. SUF ¶ 29.
The 1982 agreement terminating the trust describes the property conveyed to Plaintiff as “all of his [Einstein’s] manuscripts, copyrights, publication rights, royalties and royalty agreements, and all of his other literary property and rights, of any and every kind or nature____” SUF ¶ 31; SGI ¶ 31. (Emphasis added.) The agreement does not specifically mention publicity rights or trademark rights. SUF ¶¶ 32, 33. Although Plaintiff concedes that the words “publicity rights” do not appear in the 1982 agreement, Plaintiff disputes SUF ¶¶ 32 and 33 on that basis that the property conveyed to Plaintiff includes “literary property and rights, of any and every kind or nature.” SGI ¶¶ 32, 33. (Emphasis added.) Literary property is indisputably intellectual property. So is the right of publicity. See Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1322-23 (11th Cir.2006) (collecting cases and authority for the proposition that the right of publicity is intellectual property). Perhaps it is under that reasoning that Plaintiff argues for an interpretation of “rights” that includes “publicity rights” and “trademark rights” (even if not explicitly stated), arguing that the expansiveness of the language (e.g., “of any and every kind of nature”) should be taken as evidence that Einstein would have conveyed his right of publicity and trademark rights to Plaintiff. In either case, there is still no dispute that the Trust does not explicitly mention publicity rights or trademark rights. This leaves open the question of whether the Trust can be interpreted to include the right of publicity or trademark rights.
IV. ANALYSIS
A. New Jersey Law Controls and Federal Courts Sitting in New Jersey Have Recognized a Postmortem Right of Publicity
The parties agree that Einstein was domiciled in New Jersey when he died, and that New Jersey law controls the issue of whether he had a postmortem right of celebrity. Cal. Civ.Code § 946 (“If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile.”); Cairns v. Franklin Mint Co., 292 F.3d 1139, 1145 (9th Cir.2002) (interpreting Civil Code section 946 to require application of the law of an individual’s domicile at death in right of publicity case, even though California’s right of publicity statute purportedly applies to “acts occurring directly in [California]”).
No New Jersey statute provides for a postmortem right of publicity, and no New Jersey state court has recognized such a right. However, Defendant concedes that federal courts sitting in New Jersey “have predicted that New Jersey state courts would recognize a post-mortem right of
B. Establishing a Postmortem Right of Publicity Does Not Require Evidence of Lifetime Exploitation
The Presley court expressly avoided deciding the question of whether lifetime exploitation is required “since Presley exercised the right to commercially exploit his name and likeness during his life.” 513 F.Supp. at 1355, n. 10. Another federal district court sitting in New Jersey did answer this question when it granted summary judgment in favor of the defendant because the plaintiffs failed to present any proof that decedent Edward Gleason “had actively exploited his name and likeness or somehow had become a public figure.... ” Gleason v. Hustler Magazine, Inc., 7 Med. L. Rep. 2183, 2185 (D.N.J. July 6, 1981) (decisions recognizing a postmortem right “reflect reliance on a critical element: the decedent’s own overt exploitation of his name or likeness, usually through an inter vivos transfer of his rights”). Defendant argues that “this Court should follow Gleason and hold that New Jersey requires exploitation of a right of publicity during life as a prerequisite to finding a postmortem right.” Motion at 12.
Defendant did not cite to the dicta in Jarvis v. A & M Records, 827 F.Supp. 282, 297-98 (D.N.J.1993) (“The right of publicity generally applies to situations where the plaintiffs name, reputation or accomplishments are highly publicized and the defendant used that fact to his or her advantage.”) In Hart v. Electronic Arts, Inc., 740 F.Supp.2d 658, 664 (D.N.J.2010) in addressing a motion to dismiss a claim for civil conspiracy arising out of new Jersey’s Consumer Fraud Act, the Court stated,
“Succinctly put, “[New Jersey’s] right of publicity signifies the right of an individual, especially a public figure or celebrity, to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for commercial benefit.” McFarland v. Miller, 14 F.3d 912, 918 (3d Cir.1994) (citations omitted) quoted in Prima v. Darden Rest., 78 F.Supp.2d 337, 348 (D.N.J.2000); see also Jarvis v. A & M Records, 827 F.Supp. 282, 297 (D.N.J.1993) (“The right of publicity generally applies to situations where the plaintiffs name, reputation or accomplishments are highly publicized and the defendant used that fact to his or her advantage.”). Underlying this right is the theory that “a celebrity has the right to capitalize'on his persona, and the unauthorized use of that persona for commercial, gain violates fundamental notions of fairness and deprives the celebrity of some economic value in his persona.” Prima, 78 F.Supp.2d at 349 (citing McFarland, 14 F.3d at 919).... ”
In addition to Gleason, Defendant cites to decisions from Arizona, California, and Utah, and refers to the necessity of lifetime exploitation as “the prevailing rule.” Motion at 13 n. 8; Nature’s Way Prods., Inc. v. Nature-Pharma, Inc., 736 F.Supp. 245, 252 (D.Utah 1990); Sinkler v. Goldsmith, 623 F.Supp. 727, 733-34 (D.Ariz.
Similarly, Sinkler is hardly persuasive. It disposes of the issue in two sentences, with no analysis as to whether the lifetime exploitation requirement has any grounding in logic. 623 F.Supp. 727, 733-34 (D.Ariz.1985) (“[T]he right of publicity has been held to survive if the holder of the right exploited it during his lifetime.... There is no showing that Joel exploited the use of his name and personality by assigning the right to use them to another.”).
In Lugosi v. Universal Pictures, a 4-3 decision, the California Supreme Court held “that the right to exploit name and likeness is personal to the artist and must be exercised, if at all, by him during his lifetime.” 25 Cal.3d 813, 824, 160 Cal. Rptr. 323, 603 P.2d 425 (1979); see 2 J. Thomas McCarthy, Rights of Publicity and Privacy § 9:20 (characterizing the Lugosi decision as “convoluted, confused, and opaque”). The California Supreme Court later clarified that Lugosi held “that the right of publicity protects against the unauthorized use of one’s name, likeness or personality, but that the right is not descendible and expires upon the death of the person so protected.” Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, 861, 160 Cal.Rptr. 352, 603 P.2d 454 (1979). In 1985, the California legislature enacted a statute expressly recognizing a postmortem right of publicity without need of lifetime exploitation. Cal. Civil Code § 990. In 1999, Civil Code section 990 was renumbered and the 50-year duration was extended to 70 years. (Cal. Civil Code § 3344.1).
Plaintiff, in response to defendant’s authorities, argues that “courts applying New Jersey law have consistently upheld post mortem right of publicity claims without requiring the plaintiff to establish lifetime exploitation by the deceased celebrity.” Plaintiff is not correct.
Plaintiff also relies on McFarland v. Miller, a right of publicity action brought by George “Spanky” McFarland, while McFarland was alive. 14 F.3d 912, 913 n. 1 (3rd Cir.1994). McFarland died during the pendency of the appeal, and his wife then pursued the case as his personal representative. Id. at 913 n. 1. Given that
Similarly, Palmer v. Schonhorn Enterprises, Inc. is inapposite because it was brought by a plaintiff, Arnold Palmer, who had commercially exploited his celebrity during his lifetime, seeking damages for invasion of his right to privacy (not infringement of his right of publicity). 96 N.J.Super. 72, 232 A.2d 458 (1967).
Other than Gleason, no New Jersey court has actually dismissed a postmortem right of publicity claim because of a failure to demonstrate lifetime exploitation. Gleason is not compelling authority. It is an obscure case, as reflected in its being merely a transcript of an oral order reported only in the Media Law Reporter.
“[T]he overwhelming majority rule under either statute or common law is that the right of publicity is descendible property and has a postmortem duration which is not conditioned on lifetime exploitation.” 2 J. Thomas McCarthy, Rights of Publicity and Privacy § 9:17.
McCarthy also notes,
At this point it seems apparent that the “lifetime exploitation” requirement appeared out of nowhere in the case law and was parroted by courts thereafter. Neither at its genesis nor thereafter did a court bother to explain the why or wherefore of having such a requirement. Like a deus ex machina, it descended out of the sky without explanation or rationale. Once on the stage it began to run amok .... Poorly conceived, it never had a firm foundation in logic, law or policy. While a well crafted compromise between extreme positions is the stock in trade of politics, a compromise in legal theory is sometimes the worst of all possible worlds. This is the case with the “lifetime exploitation” requirement. Its weak logical foundations soon became apparent as the courts and legislatures began to reject it.
2 J. Thomas McCarthy, Rights of Publicity and Privacy § 9:14; see also Restatement (Third) of Unfair Competition § 46 cmt. h (1995) (“Although commercial exploitation prior to death can be relevant in establishing the value of the appropriated identity, it should not be required as a condition of descent.”).
As McCarthy references, there is well-reasoned authority rejecting the lifetime exploitation requirement. See, e.g., Martin Luther King, Jr., Center for Social Change, Inc. v. American Heritage Products, Inc., 694 F.2d 674, 678 (11th Cir.1983) (“King”). According to the King court:
Without doubt, Dr. King could have exploited his name and likeness during his lifetime. That this opportunity was not*1031 appealing to him does not mean that others have' the right to use his name and likeness in ways he himself chose not to do. Nor does it strip his family and estate of the right to control, preserve and extend his status and memory and to prevent unauthorized exploitations thereof by others.
The right of publicity is an asset, to be sure, but that does not necessarily mean it must be conditioned upon lifetime commercial exploitation of its value. There are sound, even compelling, reasons to allow the heirs of a famous decedent to prevent strangers from exploiting his name, image, reputation and identity, even if the decedent himself did not do so during his lifetime. For example, there have been famous people who, during their lifetimes and afterward, renounced wealth or declined to pursue it, and in part for that reason were revered for their modesty and spirituality. Surely a part of whatever happiness and satisfaction they derived from being famous came from the realization that they were setting an example for those closest to them — presumably including their heirs. Such people fairly can be deemed to have “exploited” their fame by developing a persona that showed that what they cared most about was “What do I stand for? How will I be remembered?” Their death should not deprive them of the very attribute that they intended to leave as their legacy.
Although Plaintiff has presented sufficient evidence to create at least a genuine dispute of fact concerning whether in a conventional manner Einstein exploited his right of publicity during his lifetime, this Court finds that at least insofar as a person’s fame derives from what Einstein stood for, the New Jersey Supreme Court would not impose a requirement of lifetime exploitation.
C. There Is a Genuine Dispute of Material Fact Regarding How Einstein Would Have Disposed of His Right of Publicity
Defendant argues that even if Einstein’s right of publicity survived his death, it would have passed to his stepdaughter Margot Einstein, thorough the Will’s residual clause at Article 14, rather than to Plaintiff through the Trust created by Article 13.
As noted above, the relevant language in Article 13 reads:
I give and bequeath all of my manuscripts, copyrights, publication rights, royalties and royalty agreements, and all other literary property and rights, of any and every kind or nature whatsoever, to my Trustees hereinafter named, IN TRUST, to hold the same for a term measured by the lives of my secretary Helena Dukas, and my stepdaughter, Margot Einstein.... Upon the death of the said Helena Dukas and the' said Margot Einstein, this trust*1032 shall terminate, and thereupon all funds or property, if any, still held in this trust, including all accrued, accumulated and undistributed income and all literary rights and property, shall pass and be distributed to Hebrew University....
Doran Decl. Exh. E at 12-13,14.
Defendant argues that Article 13 refers only to literary property and literary rights, which have common meanings that unambiguously exclude Einstein’s right of publicity. See, e.g., Capitol Records, Inc. v. Mercury Records Corp., 221 F.2d 657, 662 (2d Cir.1955) (“Literary property is in essence a right to exclude, to a greater or lesser extent, others from making some or all use of the expressed thoughts of an author.”); Desny v. Wilder, 46 Cal.2d 715, 740, 299 P.2d 257 (1956) (“ ‘Literary property’ is a general term which is used either to describe the interest of an author ... in his works ... or to denote the corporeal property in which an intellectual production is embodied.”). Further, “the general description ‘literary property or rights’ follows the enumeration of ‘manuscripts, copyrights, publication rights, royalties, and royalty agreements,’ and therefore refers only to rights of that nature.” Motion at 20; citing In re Bibinski’s Estate, 73 N.J.Super. 163, 167, 179 A.2d 185 (1962) (relying on the principle of ejusdem generis, “where certain things are enumerated ... and a more general description is coupled with that enumeration ... the latter term is commonly understood to cover only things of a like kind with those enumerated”).
Plaintiff argues that the language in Article 13 contains “no limiting or exclusionary words at all used to describe the rights transferred, and certainly nothing specifically excluding publicity rights.... ” Opp. at 16. According to Plaintiffs line of argument, the Will itself could not have explicitly included (or excluded) Einstein’s right of publicity because “[t]he concept of a descendible right of publicity did not yet exist when the Will was created in 1950.” Opp. at 17. In fact, argues Plaintiff,
Even though Dr. Einstein was clearly aware of his value as a celebrity [exemplified, for example, by agreeing to the use of his name to further causes he supported], there was no need for him to specify that he was transferring rights related to his celebrity status in the Will or to treat those rights differently than the other rights he transferred to the Trust because under New Jersey law the right of publicity nomenclature had not yet been created. To say that Dr. Einstein intended to exclude publicity rights in his Will is like saying he intended to exclude revenues from DVD sales and iTunes downloads.
Opp. at 17.
Later, in explaining why none of Einstein’s heirs had asserted ownership of Einstein’s right of publicity until 1985, Plaintiff argues that “there were not any legally recognized rights to abandon until 1981, since that was the first time (in Presley) that a court recognized the post mortem right of publicity under New Jersey law.” Opp. at 20.
Plaintiff walks a fine line here. For as Defendant argues, “[I]f Dr. Einstein had no post-mortem rights when he died ... then he had no rights to bequeath to anyone.” Reply at 22. Federal district courts in California and New York, for example, have held that Marilyn Monroe had no postmortem right of publicity because no such right existed in California or New York at the time of her death, and so such right could not have passed through her will. Shaw Family Archives Ltd. v. CMG Worldwide, Inc., Additional Information