Who owns Einstein’s face?
IN JULY 2003, THE PHYSICIST AND PULITZER-PRIZENOMINATED AUTHOR DR TONY ROTHMAN RECEIVED AN EMAIL FROM HIS EDITOR BEARING UNWELCOME NEWS. Rothman’s new book was weeks from publication. An affable debunking of widely misunderstood stories from the history of science, the title, Everything’s Relative, was a playful nod to Albert Einstein’s theory of relativity. Rothman had asked his publisher, Wiley, to put a picture of history’s most famous scientist on the cover.
“An issue just came up,” the email read. Rothman’s editor had been warned that Einstein’s estate is “extremely aggressive and litigious”. Unless the publisher paid a hefty fee to use the image of Einstein, the editor explained, they could be sued. Rothman was dismayed. “I think this is ridiculous,” he replied. “If the estate went after everybody who used [Einstein’s image], they’d have no time for anything else. Are you sure they even own it?” Rothman’s editor was unwilling to investigate the legal technicalities. It was not the first time the publisher had encountered hostile heirs, he said, referring to “the slavering jackals” who run the literary estate of an iconic 20th-century American writer.
Albert Einstein died in 1955. In his will, he pledged that his “manuscripts, copyrights, publication rights, royalties … and all other literary property” would, upon the deaths of his secretary, Helen Dukas, and stepdaughter, Margot Einstein, pass to the Hebrew University of Jerusalem, an institution Einstein co founded in 1918. Einstein made no mention in his will about the use of his name or likeness on books, products or advertisements. Today, these are known as publicity rights, but at the time Einstein wrote his will, no such legal concept existed. When the Hebrew University took control of Einstein’s estate in 1982, however, publicity rights had become a fierce legal battleground, worth millions of dollars each year.
In the mid-1980s, the university began to assert control over who could use Einstein’s name and likeness, and at what cost. Potential licensors were told to submit proposals, which would then be assessed by unnamed arbitrators behind closed doors. An Einstein-branded nappy? No. An Einstein-branded calculator? Yes. Anyone who did not follow this process, or defied the university’s decision, could be subject to legal action. Sellers of Einstein-themed T-shirts, Halloween costumes, coffee beans, SUV trucks and cosmetics found themselves in court. The university’s targets ranged from hawkers of market-stall novelties to multinationals such as Coca-Cola, Apple and the Walt Disney Company, which in 2005 paid $2.66 m for a 50-year licence to use the name “Baby Einstein” on its line of infant toys.
Einstein had been well-paid. His
