Is Albert Einstein Now in the Public Domain?

The GM Ad

Albert Einstein was no stranger to the concept of Intellectual Property.  In fact, he was a patent clerk in Switzerland as a young man.

Einstein later emigrated to the United States and took up residence in Princeton, New Jersey and held a professorship at the prestigious Institute for Advanced Study.  Einstein contributed so significantly to modern science that his name and likeness are still synonymous with genius.

Albert Einstein died in 1955, naming the Hebrew University of Jerusalem as one of the beneficiaries of his will.  As part of that will, he bequeathed all of his Intellectual Property, including any rights to his likeness or persona.

Over five decades after his death, many successful commercial products still bear his name and likeness.  So much so, in fact, that Forbes lists Einstein as one of the top 15-earning "dead celebrities," raking in up to $10M per year.

For example, new parents are familiar with the BABY EINSTEIN and LITTLE EINSTEIN products and videos.  These products were licensed by the Hebrew University, helping to make EINSTEIN a very valuable trademark.

However, now that 5 decades have past since Albert Einstein's death, Courts have ruled that at least some of Hebrew University's valuable rights may be at an end.

Carmaker General Motors had used an altered image of Einstein in a 2009 ad for the GMC Terrain, a sport utility vehicle.  The ad, which ran only once in People magazine, showed Einstein's face pasted onto a muscular body with an "e=mc " tattoo.  It carried the slogan "Ideas are sexy too." (See above)

Hebrew University sued GM in 2010, arguing the carmaker had no right to commercially utilize Einstein's image, and demanding damages.

But the Court ruled that descendants' right to control an image after death must be balanced with the public's right of expression.

The Court also ruled that any right Hebrew University had to sue expired in 2005 - 50 years after Einstein's death, because that was the limit on copyright law in 1982, when Hebrew University acquired Einstein's right of publicity.

Ghosts of Christmas Past: Gimbels Department Store

One of the most fascinating traits of trademarks is how they become part of our shared culture, seeping into our daily lives in a way that we don’t even realize until they are gone but not forgotten.

Some trademarks persist for generations, as others fade into memory as they are abandoned, only to reappear in movies, creating a sense of nostalgia.

Case in point:  You may have noticed the reference to Gimbel’s Department Stores in the popular holiday movie Elf.

Gimbels was actually once the largest department store chain in the world.  

Gimbels was so successful, that in 1922 the chain went public, offering shares on the New York Stock Exchange (though the Gimbel family retained a controlling interest). 

By the time of World War II, profits had risen to a net worth of $500 million, or over $8 billion in today’s money.

Gimbels New York flagship store was located in the cluster of large department stores that surrounded Herald Square – the current home of Macy’s.

By 1987, Gimbels no longer existed as a department store chain.

However, a small souvenir store in Boothbay Harbor, Maine, actually still owns the federal trademark, as it has existed as “Gimbel & Brothers Country Store” since the early 1970’s.

Indeed, Director Jon Favreau reportedly paid the country store $5,000 in licensing fees to use the Gimbel’s name in Elf.

Hacking the Hackers

The Los Angeles Times reports on a new online security company called CrowdStrike founded by the former chief technology officer at McAfee Inc., George Kurtz.  Also joining CrowdStrike is the former head of the FBI's Cyber Crimes Division, Shawn Henry.

CrowdStrike is at the forefront of a novel business model for cybersecurity, one that identifies sophisticated foreign attackers trying to steal U.S. intellectual property and uses the attackers' own techniques and vulnerabilities to thwart them.  The firm is marketing itself as a private cyber intelligence agency, staking out networks to catch infiltrators, assembling dossiers on hackers and fooling intruders into stealing bogus data.

CrowdStrike, which employs Chinese linguists and former U.S. government agents, also has identified Chinese hackers using clues in their malware.   It then profiles them — complete with real names and photos — using information gathered from a variety of sources.

That has helped the company, for example, identify a Chinese hacker who targeted financial institutions and tends to seek merger and acquisition information.  Profiles enable a more targeted defense by helping CrowdStrike know when an attacker is likely to strike, how he communicates, what malware he uses and how he tries to take the stolen data.

Some experts believe CrowdStrike and other companies should be able to "hack back" by, for example, disabling servers that host cyber attacks, whether they are in the U.S. or abroad.  But this approach is not without critics, who worry how far companies might go down the road of cyber vigilantism.

The Justice Department has said hacking back may be illegal under the Computer Fraud and Abuse Act, a 1996 law that prohibits accessing a computer without authorization.  Many lawyers liken it to the principle that a person can't use "self-help" to legally break into his neighbor's house, even if he sees his stolen television in the neighbor's living room.

But what happens when the authorities themselves are unable, or unwilling, to cope with the threat that such hackers present?  

Critics worry that third party servers may be affected, or that attacks on Chinese or Russian-controlled computers could trigger an international incident.  What do you think?