In July 2003, the physicist and Pulitzer-prize-nominated 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 via email. “If the estate went after everybody who used [Einstein’s image], they’d have no time on their hands 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 darkly to “the slavering jackals” who run the literary estate of one iconic 20th-century American writer.
Albert Einstein died in 1955. In article 13 of his last will and testament, 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 that Einstein cofounded 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 was writing 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 diaper? 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 $2.66m for a 50-year licence to use the name “Baby Einstein” on its line of infant toys.
Einstein had been a well-paid man. His Princeton salary of $10,000 – roughly $180,000 in today’s money – was set by the university to exceed that of any American scientist (“Isn’t that too much?” Einstein queried at the time). But his earnings in life were insignificant compared to his earnings in death. From 2006 to 2017, he featured every year in Forbes’ list of the 10 highest-earning historic figures – “dead celebrities” in the publication’s rather diminishing term – bringing in an average of $12.5m a year in licensing fees for the Hebrew University, which is the top-ranking university in Israel. A conservative estimate puts Einstein’s postmortem earnings for the university to date at $250m.
Despite the university’s repeated successes in taking on alleged infringers, critics remain unconvinced that Einstein would have wanted any of this. In life, he resisted attempts to commercialise his identity. Why would he have changed this position in death? One American law professor, writing in the New York Times, described the institution and others like it as “the new grave robbers”. A lawyer for Time Inc called agents acting for the university a “group of tribal headhunters”. The manufacturer of a children’s novelty Einstein costume is among the scores of businesses to have protested against the university’s position, telling a reporter, “[The university] cannot ‘inherit’ rights from Albert Einstein which did not exist at the time of his death.” The university, meanwhile, claims it has not only the legal right, but also a moral duty to protect Einstein from those who would besmirch his name with dubious associations. Beyond this, it is not keen to discuss the matter. The university rejected my request for an interview for this article, but agreed to reply to email questions via an intermediary. Its responses were terse. To factual questions, it largely answered “not known”. To other questions, it restated that it is entitled to enforce its legal rights and does not wish to disclose further details.
The matter is far from settled. Prof Roger Schechter from George Washington University Law School describes the law around postmortem publicity rights as “a complete mess”. While Brazil, Canada, France, Germany and Mexico have national laws that specify the definition and duration of postmortem publicity rights, in the US the law varies between states. Only 24 states have adopted a formal statute on postmortem publicity rights, which can last anywhere from 20 years after a person’s death (Virginia) to 100 (Oklahoma, Indiana). A celebrity who dies in California therefore has different rights to one who dies in New York. New Jersey, where Einstein died, is one of 17 US states that has placed no limitation on the right of an heir to profit from a dead celebrity’s publicity rights – which could allow the Hebrew University to bring legal action against alleged infringers indefinitely. “If I were looking for a problem to put on a final law exam that would put my students through their paces,” Schechter told me, “Einstein would be it.”
While lawyers debate obscurities of law, the Hebrew University continues to profit from Einstein’s name, likeness – even his silhouette. Last year the British government paid an undisclosed sum to use Einstein to front a nationwide TV and online advertising campaign for smart energy meters. The university is currently embroiled in a case it has brought against 100 alleged infringers of its Einstein trademarks in the state of Illinois, where a statute protects everything from a celebrity’s likeness to their “gestures and mannerisms” for 100 years.
Back in 2003, Rothman was unconvinced by his publisher’s claim that the university had the power to ban Einstein from the cover of his book. How could any organisation – let alone an institution dedicated to learning – claim ownership of a public figure’s image in such a way? His publisher, however, was unwilling to risk a costly legal battle. Rothman received a mock-up of the cover. Einstein was gone, replaced by Thomas Edison.
“The design sucks,” Rothman wrote to his editor, before adding in a follow-up email, “I demand that you go back to the original.” The publisher’s position remained firm. The university’s reputation was enough to dissuade them. When Everything’s Relative finally appeared in bookshops, the cover showed a puff of clouds that spelled out the world’s most famous formula, E=mc2. The equation’s author was nowhere to be seen.
Einstein understood the power of images. Throughout his life he conjured simple scenes to illustrate complex ideas: a plummeting elevator, a train speeding through a lightning storm, a blind beetle creeping along a curved surface. To explain his special theory of relativity he would joke: “A minute sitting on a hot stove seems like an hour, but an hour sitting with a pretty girl passes like a minute.” In time, he too would become a symbol, the purest embodiment of that enigmatic quality: genius.
As a baby, however, Einstein lacked promise. On seeing the infant’s lopsided head for the first time in 1879, his maternal grandmother exclaimed: “Much too fat! Much too fat!” The family maid dubbed the boy “der Depperte” – the dope. Einstein took so long to learn to talk that his parents made an appointment with the doctor to find out if there was something wrong with him. One schoolmaster declared that his most distracted pupil would never amount to anything.
After Einstein graduated from the Zurich Polytechnic with a diploma in mathematics, he was rejected for several junior academic jobs. While working at the Bern patent office as a clerk – or, in his words, a “respectable federal ink pisser” – he developed scientific theories and in 1905, at 26, began to publish a series of papers that would revolutionise physics, including the special theory of relativity. Other scientists quickly grasped the significance of Einstein’s ideas and in 1909 he became professor of theoretical physics at Zurich University. It wasn’t until 1919, however, that Einstein became world famous.
That year, during a solar eclipse, the English astronomer Sir Arthur Eddington conducted a photographic experiment designed to evaluate one of Einstein’s theories: that gravity bends light over distance, a simple assertion with galaxy-rearranging implications. If true, the position of every star, moon and planet would have to be recalculated. Einstein was not well known in Britain, where scientists took pleasure in ignoring or denigrating their German counterparts. Still, the great and the good came to the Royal Society of London on 6 November 1919, to hear the results of Eddington’s experiments. The next morning’s edition of the Times delivered the news to the world: “Revolution in Science. New Theory of the Universe. Newtonian Ideas Overthrown.” The New York Times declared Einstein’s discovery “perhaps the greatest achievement in the history of human thought”. “Lights all askew in the heavens,” read one headline. The dope had knocked the world from its axis.
Reborn as a public figure in this, the first flowering of mass media, Einstein began to receive torrents of fan mail. “I’m burning in Hell and the postman is the devil,” he wrote four weeks after Eddington’s presentation, complaining that he was so hounded by the press that he could “barely breathe”. Still, Einstein continued to give interviews, where his easy wit and talent for aphorism made for good copy. He wrote editorials for national newspapers and kept glittering company. He had a kind of undefinable charisma. “Einstein’s personality, for no clear reason, triggers outbursts of a kind of mass hysteria,” wrote a bewildered German consul in New York in 1931.
His intellect made Einstein famous, but it was his appearance that made him an icon. Few understood the implications of his work – “4,000 bewildered as Einstein speaks,” wrote the New York Times – but his image, spread via the accelerating technologies of print and television, was eminently approachable. The frazzled hair, the frowsy jumper, the caterpillar moustache, the hangdog jowls and those sad, galactic eyes. “He was slovenly,” Robert Schulmann, a former editor of the Collected Papers of Einstein told me. “And at some point, it began to work in his favour.” Einstein’s image endeared him to the world, suggesting that here was a mind too occupied with higher questions to spare much thought to, say, a comb.
Einstein’s work as a humanitarian, philosopher, pacifist and anti-racist continued throughout his life. After Adolf Hitler came to power, the émigré Einstein renounced his German citizenship and never returned to his homeland. (His summer house in Caputh, Brandenburg was used by the Hitler Youth.) He worked to help refugees escape Nazi oppression, campaigned for the civil rights of black Americans and, after his theories helped build the atomic bomb, became a vociferous pacifist. Today Einstein’s fingerprints can be found on many of the technologies that make the modern world work, from lasers to the semi-conductors that power your smartphone. But in the public eye at least, it is Einstein’s image that has most conspicuously endured.
On 14 March 1951, as Einstein left the Princeton Club in New Jersey, where he had been celebrating his 72nd birthday, he caught sight of a camera held by the American photojournalist Arthur Sasse. Einstein looked down the lens and poked out his tongue. When Sasse sent the image to his editors, they debated whether to publish, fearing the image caught a distinguished subject in a moment of lapsed judgment. In fact, on publication, the picture provided the most famous and enduring image of the scientist: a loveable joker who also happened to be an era-defining genius. Einstein ordered nine copies.
Einstein died four years later, on 18 April 1955, at the age of 76. He had made plans to prevent posthumous idolatry, leaving instructions with his trusted friend and executor of his estate, the economist Otto Nathan. Einstein wanted his body to be cremated and the ashes scattered over the Delaware river on the Atlantic coast. There would be no shrine; his work alone would be his legacy. This did not prevent the theft of his brain, which was extracted and preserved by Thomas Harvey, chief pathologist at the hospital where Einstein died. (“My dad’s got his brain,” Harvey’s son, Arthur, told his classmates, the next morning.) Harvey hoped to keep for study the most impressive organ humanity had yet produced. In terms of future dividends, however, Harvey picked the wrong relic. It was not Einstein’s brain the world wanted; it was his face.
Whenever he walked into the living room of his parents’ house in the town of Washington, New York, Roger Richman saw a framed photograph of Albert Einstein standing with his father. Richman’s father, Paul, had befriended Einstein in the 1930s when they worked together to help German Jews resettle in Alaska, Paraguay and Mexico. (At the time, most of the US was closed to those fleeing Nazi oppression.) Richman’s father died in 1955, three months after Einstein, but the Richman family remained close to the keepers of Einstein’s legacy.
Richman became a lawyer, and in 1978 founded an agency that specialised in product placement in film and TV. The following year, the heirs of the late American comedian WC Fields contacted his office. They wanted Richman to become his agent – a surprising request, given that Fields had been dead for 32 years. Fields’ heirs hoped Richman could ban the sale of a poster that showed the comedian’s head superimposed on a body clothed only in a nappy. There seemed to be little legal recourse: a celebrity’s publicity rights did not extend in law to heirs.
While researching the law, Richman found a case involving the son of Bela Lugosi, the Hungarian-American actor best remembered for his performance as Dracula. In 1966, Lugosi’s son sued Universal Pictures, claiming that he and his stepmother owned his father’s image rights, not the movie studio. Lugosi’s son won the case at trial, but the high court overturned the ruling on the grounds that his father had not sold his image for commercial purposes during his lifetime. Richman deduced, then, the heirs of any celebrity who had sold his or her image during their lifetime had a claim on their publicity rights.
An opportunity to test his theory came a few months later, when Richman learned the US Postal Service planned to produce a commemorative stamp in honour of WC Fields’ 100th birthday. He lodged a complaint, mentioning the high court’s judgment in the case of Lugosi. After initial protestation, the Postal Service paid its first licence fee to the estate of a dead celebrity.
Richman soon built an enviable roster of deceased clients, which included Marilyn Monroe and Sigmund Freud. Descendants of late celebrities were often pleased to hear from Richman, who offered them a way to protect their loved ones from legacy-tainting associations and to make some money along the way. Advertisers, too, were eager to collaborate with the dead who, unlike the living, did not become embroiled in new scandals, fail to turn up for expensive photo shoots, or demand costly contract renegotiations. The recipients of Richman’s legal letters, however, were sceptical. Companies used to abiding by established libel, copyright and trademark law found themselves “ambushed by sketchy and unsettled legal claims”, as Will Clark, the cofounder of Baby Einstein, told me. “It was clear Richman had ‘invented’ an interesting legal concept that resonated in Hollywood. But it was equally clear he was pushing a big boulder up a steep hill.”
Richman considered himself the underdog. “Oftentimes I became despondent over the power and influence of the opposition,” he wrote in an unpublished memoir. “I was fighting major advertising agencies, broadcasters, film studios, manufacturers and publishers – a belligerent field.” He was energised, however, by what he considered to be a moral cause. How could anyone, Richman wrote, “not want to remove a presidential dildo from the marketplace?”
To add legal heft to his threats, WC Fields’ grandson, Everett, suggested that Richman draft a celebrity rights law. At first, Richman thought the idea preposterous. But when the California senator William Campbell expressed interest in drafting such a law, Richman wrote more than 80 letters to “widows and orphans of celebrity greats”, and amassed a group of powerful supporters, including Elizabeth Taylor, Elvis Presley’s ex-wife Priscilla and Bing Crosby’s widow Kathryn. After two rejections, the California Celebrity Rights Act passed on 1 January 1985. In California, at least, heirs could now legally inherit the publicity rights of their celebrity ancestors who had died in the state. With a legal precedent established in California, Richman was in business. It was time, he decided, to come to the rescue of his father’s old friend, Albert Einstein.
During his lifetime, Einstein had fought any attempts to use his name and likeness as a promotional gimmick. He even barred seemingly harmonious associations, such as Brandeis University’s proposal that it be renamed Einstein University. In death, however, nobody seemed to care what Einstein had wanted. By the 1980s Einstein’s likeness was attached to all manner of goods and services, lending everything from frisbees to snow globes a frisson of intellectual glamour. Now Einstein was unable to protest, almost every company in the world seemed both willing and able to profit from him.
After the passage of the Celebrity Rights Act, Richman began to collect clippings of advertisements that featured Einstein. He sent a folder of this material – everything from ads for cars to ads for hair salons – to Einstein’s executor, Otto Nathan, with a letter asking whom he should contact to, as he put it, “prevent this kind of abuse”. Nathan forwarded the clippings to the Hebrew University in Jerusalem. Seeing an opportunity to exert some influence over the use of Einstein’s likeness, on 1 July 1985, the university appointed Richman as Einstein’s “exclusive worldwide agent”, as he described his role. The Princeton-based newspaper US1 had another name for Richman’s function, later describing him as “the Hebrew University’s designated gorgon-watchdog”.
The deal tilted in the university’s favour. It took a 65% cut from every licence deal, or 50/50 for the proceeds of successful legal actions against infringers. Where others perceived Richman as an opportunist, he considered his work a moral campaign to protect the legacy of the 20th century’s defining icon. Richman drew up a set of guidelines, which the university agreed to: Einstein would not be associated with tobacco, alcohol or gambling. There was to be no fabrication of quotations or formulas. No advertiser could draw a thought bubble on to a picture of Einstein and seek to fill his mind with their words or ideas. “Those were the basics,” wrote Richman. He claimed his personal connection to Einstein strengthened his resolve to only allow affiliations “befitting a physicist, humanitarian, philosopher and pacifist”.
Richman was a tireless seeker of Einstein contraband, so the university delegated the responsibility for dealing with the deluge of requests to a volunteer, Ehud Benamy from the American Friends of the Hebrew University in New York – an affiliate organisation established to raise university funds and awareness in the US. Richman sent every licensing proposal to Benamy, who rejected many requests. Benamy agreed with Richman’s view that Sasse’s famous photograph showing Einstein sticking out his tongue was “in bad taste”, and the pair decided they would reject the frequent requests they received from advertisers to use the image. (Several years later the Hebrew University conceded that it should not outright veto a pose Einstein had “knowingly presented to the world”.) The pair refused to grant a licence to an Italian manufacturer of ovens, an association Richman believed may upset Jewish holocaust survivors.
Computer manufacturers were especially eager to associate their products with Einstein. In 1989, Sony reluctantly paid $63,000 to use Einstein’s image in an advertisement. In 1997, Richman received word that Apple wanted to use Einstein’s photograph to advertise its Mac computers alongside the slogan “Think different”. After Richman had negotiated what he believed to be a fair fee of $600,000 he received a call from Apple’s cofounder, Steve Jobs, demanding a reduction. “I explained that there was only one Albert Einstein,” Richman wrote in his memoirs. If the fee was too high, he said, Jobs could license Mae West instead: “She thought different also.” Jobs paid up.
Despite Richman’s best efforts, some “seriously offensive” products, as he saw them, reached the market. When Richman discovered that a chain of stores owned by Universal City Studios sold a sweatshirt with the slogan “E=mc2: Shit Happens”, he successfully had the sweatshirt banned, and forced Universal to pay $25,000 in damages. Richman later took umbrage at Command & Conquer, the video game series launched in 1995 by Electronic Arts, in which players could, in his words, “click a few keys that result in Adolf Hitler killing Albert Einstein”. Richman wanted EA to add a sticker to each box warning of antisemitic content. EA counterclaimed that fictional writing about historical characters was a first amendment right that superseded the right of posthumous publicity. The parties settled out of court.
Richman resented the fact that he was often depicted in court and the press as a “marketing ghoul”. It was a hurtful portrayal, he wrote, “especially since I had written laws preventing snakes to slither into everyone’s life”. Richman considered it troubling, too, that as a Jewish entrepreneur he was routinely portrayed as an opportunistic money-grabber. It was indisputable, however, that Richman was committed to securing the Hebrew University – and himself – the most favourable terms. When Richman learned that the Baby Einstein company was in talks to sell to the Walt Disney company, he demanded the previously agreed upon licence fee be increased. (Will Clark, the cofounder of Baby Einstein, believes that the university publicised the final $2.66m licence figure to “establish validity of licensing Einstein’s name and paying a premium for it”.)
Emboldened by success, Richman even began to target companies that used Einstein’s name without any intended association with the physicist. The Einstein Bros Bagel company caved to the university’s demands, despite being named after its own founders. For one academic at the Hebrew University, Richman’s aggressive stance presented a troubling ethical dilemma.
Throughout the 1990s, Ze’ev Rosenkranz, curator at the Einstein Archives at the Hebrew University in Israel, received as many as 30 faxes a month from Richman’s office in Beverley Hills. Each fax contained a proposal from a different company that hoped to use Einstein’s name or likeness in its product or service: everything from antibiotics to computers, cameras to soft drinks. It was up to Rosenkranz, a young academic who, through his work preserving Einstein’s papers, was intimately familiar with the scientist’s thoughts and values, to bless or veto each offer. The responsibility was “overwhelming”, Rosenkranz told me recently. “I am a historian, not a businessman. But somehow the university had decided that this would be my role.”
The task had fallen to Rosenkranz after Ehud Benamy died in late 1990. The academic deliberated over each request with a scholar’s sense of duty, balancing his speculation as to what Einstein may have wanted with the pressure he felt from Richman to greenlight anything that did not carry an obviously harmful association. “It was basically an issue of taste,” he recalled. “Sometimes I didn’t think the product in question, or its design, or the accompanying text were sufficiently ‘lofty’.”
Refusals would often be met with fury. “Companies would say: ‘This is all hogwash’,” Rosenkranz said. “‘These people are dead. They don’t have rights.’” Others denied that their Einstein-themed product had any association with the physicist. “There was a word processor called ‘Einstein’ that was popular in Israel at the time,” Rosenkranz told me. “The company even used the word ‘genius’ in its marketing.” But the makers claimed that the Einstein software was named not after the physicist Albert but after the company’s founder, Stuart. (According to Rosencranz the argument worked, and the company never paid up.)
The university seemed happy to keep a low profile while Richman fought its profitable battles. “I didn’t get the impression that people were at all aware of the university’s role during this period,” Rosenkranz told me. “But Richman had the reputation of being a tough cookie in the negotiations – which was in the university’s interest.”
Rosenkranz was uneasy about his role. He believed Einstein would have been against most, if not all, marketing associations. “If it was purely commercial, he was usually against it,” he said. Yet Richman put pressure on him to approve a far wider range of proposals. Rosenkranz recalled that when he rejected a deal from Huggies diapers, Richman was particularly unhappy. “It wasn’t purely about profit for him,” recalled Rosenkranz. “But in the end, it was a business. And I am in academia. It was not an easy topic.”
Before he sold his agency and its roster of “dead legends” to the photo agency Corbis in 2005, Richman persuaded the Hebrew University to file a slew of trademarks for Einstein-related products, which, he argued, would be easier to defend across legal jurisdictions according to established trademark laws. Soon the university held trademarks for “Albert Einstein” on nearly 200 separate items, including metal detectors, umbrellas, arcade games, Christmas tree decorations, butterfly nets, water-squirting toys and life-size cardboard cutouts.
For Rosenkranz, who continued to deliberate on licensing deals until he moved to southern California and resigned from his position at the university in 2003, the introduction of a trademark symbol was deeply uncomfortable. “The first time I saw the little ‘TM’ above his name it really bothered me,” he said. “There’s no greater sign of commercialisation or commodification, is there? But [the lawyers] told me that, you know, this was all really important to guarantee the rights.” With international trademarks, the university could now litigate alleged infringements in countries where there was no posthumous right of publicity.
Rosenkranz was not the only person to feel uneasy about the arrangement. In early 2011, when she was 70, Einstein’s adoptive granddaughter, Evelyn, announced plans to sue the Hebrew University for what she considered to be a gross overreach of their role. What had started out as an act of curation had, in her view, evolved into a form of exploitation. “I was really offended by some of the stuff that was being OKed,” Evelyn told a journalist from the New York Post. Evelyn’s friend, the lawyer Allen Wilkinson, told me that “she could not stand the fact that they were profiting from Einstein bobbleheads and other bits of memorabilia that have nothing to do with literary rights”. The university, Evelyn claimed, had ignored her requests for an arrangement that would allow her to profit from the sales to help pay her medical bills.
Evelyn died before she had her day in court. But shortly after her death in April 2011, a case was heard in California that, it seemed, would settle the question of Albert Einstein’s ownership for good.
In November 2009, General Motors had placed an advertisement in People magazine that depicted Einstein’s face pasted on to a muscled body, accompanied by the slogan: “Ideas are sexy too.” The Hebrew University protested: “Dr Einstein with his underpants on display … causes injury to [the university’s] carefully guarded rights in the image and likeness of the famous scientist.”
On 16 March 2012, the Hebrew University took GM to court in an attempt to prove, definitively, that “Albert Einstein would have transferred his postmortem right of publicity under New Jersey law had he been aware that such a right of publicity existed at the time of his death”. GM rejected this, arguing that, even if the university could prove both Einstein’s intent with respect to the right of publicity and GM’s violation of that right, enough time had elapsed between Einstein’s death in 1955 to nullify the point.
The trial was beset with complications. While the case was due to be heard in a California federal court, the presiding judge, Howard Matz, chose to apply New Jersey state law to the case – the jurisdiction in which Einstein had died. While California law protects a person’s publicity rights for 70 years after their death, New Jersey does not stipulate any duration of such rights. It took seven months for Matz to reach the verdict. “Einstein’s persona has become thoroughly ingrained in our cultural heritage,” Matz wrote in his ruling. “Now, nearly 60 years after his death, that persona should be freely available to those who seek to appropriate it as part of their own expression, even in tasteless ads.”
“Hebrew University loses lawsuit over Einstein image,” wrote the Times of Israel. But this seemingly conclusive verdict was far from clear cut. “It’s a curious case with an extremely unsatisfying resolution,” Prof Schechter from George Washington University Law School told me. “You had a California judge guessing at a New Jersey law that doesn’t strictly exist. Today no court would have to give this decision any weight whatsoever.” The university appealed the decision, and the case was sent back down to the lower court for further proceedings. Then the parties abruptly settled. “If someone were to ask me what is the law in the state of New Jersey regarding the existence and duration of postmortem publicity rights? Well, we only have the best guess of an out-of-state federal judge in a vacated opinion,” Schechter said. “It’s not much to go on.”
In the years since, there have been repeated calls for US Congress to step in and pass a uniform statute for the entire country. “Until they do, it’s highly variable,” said Schechter. Outside of the US, the law is equally uneven. In Brazil, posthumous rights persist for as long as there are living heirs. In Germany, the period is 70 years. In England and Wales, by contrast, there is no clear right of publicity at all. Lawyers seeking to protect an individual’s image and personality must instead resort to what one firm describes as “a patchwork of legal rights”.
After Richman died in 2013, Corbis, the photo agency to whom he had sold Einstein’s publicity rights, was rebranded as GreenLight Rights, which manages not only Einstein’s rights but also those of Elvis Presley, Charlie Chaplin and Marilyn Monroe. Since then, the business of managing Einstein’s image has become more sophisticated. GreenLight collaborates with companies that use special software to identify counterfeit and infringing merchandise online.
Licence requests are no longer sent to a solitary academic in Israel, but to a panel of experts at the Hebrew University of Jerusalem with the power to bless or veto. (The panel considers commercial requests. Media outlets such as the Guardian can use photographs of Einstein to illustrate stories like this one via existing deals the university has in place with photo libraries such as Getty.) Each application is considered on its own merits, but, following Richman’s original guidelines, speech bubbles, which could enable a company to put words in Einstein’s mouth, are always turned down, Yishai Fraenkel, vice president and CEO of the Hebrew University of Jerusalem told me, over email, via a GreenLight representative. The university declined to state how often the experts meet to deliberate, or to identify who sits on the panel, stating, “It does not seem appropriate or lawful to include names of individuals.”
Six decades after his death, Einstein’s earnings show no sign of slowing. That Einstein remains so in demand is a function not just of his otherworldly brilliance and unforgettable appearance, but also the values he embodied. It has always been easy for diverse groups to embrace Einstein – a short, dyslexic hypochondriac from a persecuted minority – as their own. His seemingly contradictory positions – he opposed the creation of a Jewish state and deplored the victimisation of Palestinian Arabs, while raising funds for Zionist causes; he disdained the idea of divine revelation, but believed in God – made it possible even for opposed groups to adopt him as their figurehead.
What would Einstein have made of his presence on the television screens, billboards, posters and T-shirts of the 21st century? Would he have been happy with the Hebrew University’s stewardship of his legacy? In life, he often felt seen but not heard. “It is strange to be known so universally and yet to be so lonely,” he once said. When I spoke to Rosenkranz – a man who spent 12 years attempting to determine what Einstein may have thought about Einstein-branded pencils and Einstein-branded Christmas tree decorations – he proposed several scenarios. “He might have been happy that the university was profiting from [his likeness] financially,” he said. “Part of him, the macho, bravado side would have just reacted to it with the shoulder shrug.” But, finally, Rosenkranz concluded, “it probably would have bothered him. No, I’m not sure if he would have been happy.”
Whatever the dead man’s wishes, the question of who owns Albert Einstein, and for how long, remains unsettled. In late 2020, a Washington-based colleague told Schechter that he was working with the New Jersey legislature on an effort to draft and enact a right-of-publicity statute to specify the duration of posthumous publicity rights for people who died there. Schechter agreed to testify before the state legislature. Then, three months later, the pandemic struck and the statute was placed on hold. Richman always aligned the duration of postmortem publicity rights with that of copyright law: 70 years after death. If New Jersey were to resurrect the statute and adopt this relatively generous postmortem right, “we could be fighting a battle”, Schechter said, “over what might be only two more years of Einstein licensing before they expire in 2025.”
In the meantime, the Einstein money continues to roll in – while the university’s reputation continues to have a powerful deterrent effect. A former curator at one of London’s most famous museums told me that he had removed Einstein’s image from publicity materials on the advice of a colleague. In advance of this article’s publication, a spokeswoman for the university warned: “To the extent that the article interferes with [our] commercial agreements, good name, or that of Dr Albert Einstein, [the University] will be prepared to defend its rights.” Not long ago, to simplify the process and assuage such fears, GreenLight Rights launched a website where would-be licensees can apply to use Einstein’s name, likeness or quotations. Applications are filtered and passed on to the Hebrew University’s mysterious Einstein panel to make the ultimate decision. The name of the site is straightforward: Einstein.biz