E = mc^2 + 50

Where did he get that 50, you ask? Well you might. Lawyers ask similar questions when judges making common law or constitutional law draw numerical lines, though sometimes there are plausible answers to such questions. Hebrew University of Jerusalem v. General Motors LLC (C.D. Cal. Oct. 15, 2012) offers an interesting illustration.

Hebrew University stemmed from an ad in People for GM’s 2010 Terrain. “The ad depicted Einstein’s face digitally pasted onto a muscled physique, accompanied by the written message ‘Ideas are sexy too.'” Hebrew University claimed that it had gotten Einstein’s “right of publicity” — the exclusive right to exploit a name or likeness for advertising purposes (and maybe some other purposes) — under Einstein’s will. In an earlier decision, the court concluded that, under New Jersey law, the right of publicity does not die with the person, but could indeed be conveyed by will. (New Jersey law was relevant because that is where Einstein was living at the time of his death.)

But if it doesn’t die with the person, how long does it last? Some states define this by statute, but New Jersey has no such statute; the right of publicity in New Jersey is a common-law, judge-made right (as it originally was in most states). One possibility is that the right might last indefinitely, but the court was unwilling to so hold (partly because very few states so conclude, and because there are good public-domain arguments against such a conclusion). Just how long, though, should the right last?

Life plus 50 years, the court said, so GM wins (since Einstein died in 1955, and the ad ran in 2009). For the reasoning, see here. It’s not as arbitrary a decision as might at first appear, since the judge isn’t just picking a number out of thin air, but is basically taking the median view among the states whose legislatures considered the issue, plus the Copyright Act rule as of 1982, when Hebrew University acquired a present interest in the right, though of course copyright law does not govern the right of publicity. (Einstein’s will left various types of property in a trust for his secretary and his stepdaughter, to be distributed to Hebrew University after the secretary’s and stepdaughter’s death.) Still, a court using the common-law process to say “life plus 50 years” is rather unusual, and those interested in such matters might enjoy reading the opinion.