Who Owns Einstein?

Tony Rothman

(This article first appeared in U.S. 1 Newspaper, Sept. 14, 2005.)  

Here is a slightly different tale for the centennial of Einstein’s annus mirabilis, 1905.  The story begins in late 2003 when I had a book published, Everything’s Relative and Other Fables From Science and Technology.  As the title implies, it is a collection of urban legends, misunderstandings and lies that have been foisted on any poor soul who has ever sat through a science course or read Time magazine.  The title was actually my third choice, but once the publisher (Wiley) and I settled on it, the house artists designed an attractive cover that included, not unreasonably, a photographic image of Albert Einstein.  Things, already complicated, got more so.

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 a few miles from Einstein’s home in Princeton, New Jersey, the phrase “Einstein estate” rang oddly.  Albert died in 1955.  His children are dead; his literary secretary is dead.  What Einstein estate?  The editor didn’t know.  Evidently the attorneys did and a few days later I received electronically the new “final” cover: in place of Einstein—Edison.  Why not?  Both names begin with E.  Somehow, though, I just couldn’t see the connection  between Edison and Everything’s Relative.  Worse, the editor had presented me with a fait accompli, bluntly informing me that the cover was going out for printing that very afternoon.  I blew a fuse.  The publisher cannot have received many voicemails like the one I left her that day, but my explosion had some effect: She halted production, the house artists completely redesigned the cover; Edison was replaced by a locomotive and E=mc2.

 

In that form the book more or less appeared, but even while the row was unfolding, scientific curiosity had taken over and I began to look into the mysterious “Einstein estate.”  I learned from Alice Calaprice, a former editor of the Collected Papers of Albert Einstein series at Princeton University Press, that indeed no “Einstein estate” currently exists, but that the Hebrew University of Jerusalem and Princeton University Press own the rights to all of Einstein’s writings that were not copyrighted by anyone else.  As for Einstein’s image, Hebrew University of Jerusalem has authorized Beverly Hills’ Roger Richman Agency, “the preeminent licensing agency, specializing in protecting and promoting the personas of world-renowned entertainment and historical personalities,” to license Einstein’s image for promotional purposes and to “prevent unauthorized use of the likeness and image of Albert Einstein.”  That is correct, a Hollywood agency, specializing in protecting the rights of movie stars claims to have exclusive rights to Einstein (and Sigmund Freud). 

It wasn’t entirely clear to me or Calaprice whether Richman could—or even thought they could—prevent the use of a legally obtained photograph on a book jacket, so I phoned the Richman Agency and asked point blank whether use of Einstein’s photo on a book fell under their “jurisdiction.”  The spokesman asked me if the book was about Einstein.  “In part,” I answered, at which point 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 being redesigned, I suggested to the editors that we 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” aka “right of celebrity.”  A celebrity is entitled to financial gain from use of his or her image or likeness, and any photographer taking a photo of a celebrity must get a release from the celeb.  Complicating matters is that state, not federal, law governs publicity and the laws vary considerably from state to state.  In most common-law states publicity rights die with the celebrity, but in other states the rights are “descendible.”  In California, post-mortem rights now 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.  In a word, celebrities and their rights do exist in New Jersey.  So far, though, it seems New Jersey has not established a duration for prohibition on impersonating the King.

But what of the Person of the Century?  I put the question to several lawyers.  The first replied that the use of Einstein photos on a book jacket would be considered advertising (magazine covers are); Richman might stake a claim.  A second answered that as long as the book was about Einstein (several chapters) there should be no problem; a third replied that as long as the copyright was cleared (the photo was licensed from a stockhouse) we were too.  A representative from the stockhouse said that a photo used inside the book was safer than on the cover.

Confused?  Welcome.  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 as the location of the executor.  Actually, Jerusalem is.  I eventually asked the representative of the Einstein Archives of the Hebrew University by what law could they restrict the use of Einstein’s image and received no reply.  What of the photos in the Lotte Jacobi Archive at the University of New Hampshire, which Einstein gave to Jacobi?  Does Richman think it owns the rights to these?  It is certainly not true, despite Richman’s website claim, that the firm is the exclusive worldwide representative of the Hebrew University, and Richman may have to duke it out with Princeton University Press.  Most puzzling, will Einstein impersonators have their shows vetted by Richman for scientific accuracy or for saintliness?  One actor I contacted is worried.

Confronted by this situation one’s first reaction, of course, is to be overwhelmed by the absurdity that Einstein is licensed by the same firm who represents Mae West and Steve McQueen.  One second thought, perhaps it is inevitable.  I’d bet a buck that Richman knows less about relativity than I do about Marilyn Monroe’s sex life.  I’d also be very curious to learn who, other than Richman, is making any money off this, for instance the photographers. 

Clearly what we have here is an example of virtual litigation: Richman flexes its muscle, publishers get cold feet and back off rather than fight out a real—and expensive—court battle.  As a result less material is published while Richman and the Hebrew University accrue a monopoly on Einstein.  Copyright is a fine thing (though what this has to do with copyright escapes me) but the limiting case of Richman’s tactics is the “French” model, where some executor, nine times removed from the deceased, owns all the rights.  We have already entered the realm of the ludicrous.  Judging from the declarations page of the Dover Memoirs of Hector Berlioz, the rights are 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.  Two hundred years from now do we really want the Richman agency controlling images, quotations and plays about Einstein, especially when Mozart and Pushkin are already on chocolates?  Watch out Einstein Alley.

The Hebrew University should ask itself what it thinks it’s protecting.  Einstein’s works will endure as long as people walk the earth and need no protection.  As to the image, well, by now the reading public knows that this saint fathered an illegitimate daughter whom he never saw, had extramarital affairs and that he was quite as prepared to marry his second fiancée’s daughter as he was the fiancée herself.  No physicist of any caliber, Einstein included, would object to his photo being used by a colleague and it is difficult to avoid perplexity that a physicist, writing a book in part about the genesis of relativity, should be required to license His image as if he were marketing MacAlbert fries.  What the Hebrew University has apparently forgotten is that Einstein was a scientist before he was a celebrity.  Einstein, in truth rather than legend, may not have actually declared that his home in Princeton should never become a museum, but he would never have wished it.  The Hebrew University and the Richman Agency have not only established a museum in his name but are charging admission.