Albert Einstein is big business. Walk into any science museum store and you’ll find Einstein magnets, posters, spoons, books, CDs, finger puppets and dolls—all offered for a price. For the second year running, Forbes ranked Albert Einstein fifth on the list of top-earning dead celebrities, with $18 million worth of Einstein product changing hands. But how does this enterprise—this Einstein Inc.—work, and where does all the money go?
The vast majority of Einstein-generated cash comes from a single company—Disney-owned Baby Einstein, whose toys and educational DVDs can be found wherever there’s a onesie or a pacifier for sale. Royalties from these products plus the animated television show Little Einsteins add up to a hefty sum without even using the great physicist’s image or ever mentioning his work. True Einstein connoisseurs, meanwhile, can enjoy the quiet thrill of returning home from the gift shop with a new Einstein calendar for tracking personal space-time and Einstein sticky notes for jotting down brilliant ideas while Einstein looks down from a poster on the wall. Parched lips? You can apply some Einstein Lip Therapy (more on this later).
Yet just as Einstein’s universe was a warped, dimpled, and deformed affair, so too is the landscape of Einstein commerce. Amid all the coffee mugs and other paraphernalia, there’s a vastly complicated side to the enterprise left in Einstein’s wake. To make almost anything Einstein—be it product, product name, or advertisement —you must first get past a small but powerful cabal that has included a marketing firm in Beverly Hills, the upper echelon of Israel’s Hebrew University of Jerusalem, and a company owned by another Forbes top earner (a living one): Bill Gates. This formidable group can put the kibosh on a wide range of Einstein products, flying, perhaps, in the face of the “free, unhampered exchange of ideas” that Einstein favored in “all spheres of cultural life.”
All of this was set in motion with Einstein’s death in 1955. Under the terms of his will, his estate eventually went to the Hebrew University of Jerusalem (HUJ), where he had been one of the first governors. Long after his death, new laws in the United States gave the university exclusive postmortem rights to profit from the Einstein name and image and the control of the Einstein “brand.” To represent its interests in Einstein’s commercial worth, the university worked with The Roger Richman Agency in Beverly Hills, whose mission was to protect the estate interests of such legendary figures as the Wright brothers, Rudolph Valentino, and Sigmund Freud. Einstein was in excellent company when, in April 2005, Richman was purchased by Corbis, a photo agency founded and owned by Microsoft’s Bill Gates.
Over the years, Richman and Corbis have protected the Einstein image with threats to anyone who came within a quark of using anything Einstein without approval. Take Quoteland.com. David Borenstein started the quotation reference site when he was 15, back in the heady days of the Internet boom. The site featured several Einstein quips that enlightened and entertained its visitors without incident for two years. But when Borenstein began to offer engravings of the Einstein quotes, he received a letter from the Richman agency on behalf of HUJ that began, “It has come to our attention that you are operating the Web site Quoteland.com, Inc., noting several quotes of Dr. Einstein.” Soon after, “we got the phone call threatening us with fire and brimstone,” says Borenstein, who now works in computational genomics at MIT. “They were asking us to hand over all our records and a percentage of anything I’d made on the site. We hadn’t sold a single Einstein quote at that point.” Though a lawyer friend assured Borenstein that he was in the clear, he did not relish a costly legal battle. He removed the quotes and soon after sold the site. “It’s directly against the principles that Einstein seemed to stand for,” Borenstein says.
Tony Rothman, a faculty member at Princeton University, was equally surprised and indignant when, shortly before his book Everything’s Relative: And Other Fables From Science and Technology went to press, his editors decided to nix the cover photo of Einstein. Though Wiley, the publisher, had paid Corbis to use the photo of Einstein holding a pipe and looking heavenward, it had not paid to use Einstein’s image in general and feared the litigation power of the Einstein estate. Rothman was appalled. “Bill Gates is getting richer off Einstein—I find this totally absurd,” he says. “Do these laws make any distinction between ‘celebrity’ celebrity and a scientist’s celebrity?
“Suppose I were at a conference and I took a picture of Niels Bohr and Einstein. What if Einstein gave me a picture of himself? Would I have to pay to use it?”
The answer is mostly yes, says attorney Jaime Wolf, whose law firm represents the estates of Allen Ginsberg, Buddy Holly, Janis Joplin, and Diane Arbus, among others. “Every living person has a right to protect use of his or her image, and in some states they can even leave this right to the heir of their choosing,” he explains. The only real question is whether use is considered editorial or commercial. Einstein photos accompanying an article about him need abide only by copyright laws (which is why DISCOVER can feature Einstein on this month’s cover). But for those adverbially challenged “Think Different” Apple ads featuring the great physicist, it was either pay HUJ its licensing fee or expect to get sued—and lose.
Einstein’s may be an extreme case, but it is not unique. Many estates protecting the worth of a deceased celebrity’s image employ “a bloody-nose strategy,” Wolf says: “Make an example of some unauthorized use to show the other kids that you won’t hesitate to come down hard.” The cover of a book about Einstein’s ideas clearly falls in the editorial camp, he explains, but the fact that the cover of Rothman’s book was changed may indicate how much of a wallop the estate can have.
Some companies are afraid even to talk about their Einstein products. Stephan Shaw, founder of the Unemployed Philosophers Guild, refuses to discuss his group’s Einstein doll or finger puppets, though he is willing to speak openly about its products based on Nietzsche, Freud, and others. David Wahl, a spokesman for Accoutrements, which produces an Einstein action figure, also refuses to go into his relationship with Corbis, Bill Gates, or HUJ, much less what changes the university may or may not have insisted on for the toy. Even an Einstein impersonator in New Jersey is unwilling to discuss this subject for fear of opening “a can of worms.” However, another Einstein impersonator (or “character of speech,” as he calls it) is less worried. A resident of California, Arden Bercovitz works under the business name “Einstein Alive” and pulls in $10,000 for a package of two corporate keynote speeches plus a visit to a local school. “As long as you don’t libel the personality—as a writer, as a creator, as a performer—you are free to treat the character any way your imagination allows,” he asserts.
Only a small and privileged handful of merchants are free to use the Einstein name (though not the image) without worry. Ben Einstein, for instance, is lucky enough to share the physicist’s last name and therefore may sell his Einstein Lip Therapy with abandon. And M. Jay Einstein fearlessly sells insurance through his business, Einstein Associates. In fact, having already established themselves in the spheres of cosmetics and insurance, Einstein Cosmetics and Einstein Associates could conceivably take HUJ to court were the university to sanction, say, an “Eye-nstein” eyeliner or start offering an attractive life-insurance plan.
For many other Einstein product developers, it’s not the threats that discourage them so much as the cost. Smaller manufacturers hoping to obtain a license from Corbis legitimately are likely to find the price tag a bit steep.
“When I heard what the licensing fee was, I freaked out,” says Ingrid Sinyor, founder and president of Eurographics, a poster manufacturer in Canada. To print five Einstein posters, with a run of 5,000 each, Sinyor says she paid Corbis $20,000 in licensing fees in addition to $5,000 for the images themselves. “We’ll probably lose money on them, but we were too much into it; we couldn’t just pull out. And it’s a good thing to have,” Sinyor says. “The only safe thing is to deal with really dead artists,” she adds, referring to those whose estates’ rights have lapsed. For instance, Eurographics has had no legal trouble selling merchandise featuring the faces of Van Gogh or Beethoven.
But most manufacturers are unlikely to get as far as Eurographics did. A second hurdle for Einstein product hopefuls is the size of their business. “Corbis will never return our phone calls,” says Terry Powers, president of ComputerGear, which sells computer-related novelties and gifts. (Corbis denies the assertion, saying such calls are returned.) Although the company’s Web site carries many Einstein items—from a polo shirt to a “relativity” watch that conveniently does not feature the face of Einstein—it is not enough to satisfy the “rabid fan base” of Einstein enthusiasts.
“We get calls literally every day,” says Martin Cribbs, the director of rights representation at Corbis. “And the vast majority are small companies that want to do an Einstein key chain or something like that. Ninety-nine percent of those get turned away. We’re not in the business of one-off Einstein novelty items.”
Even if a company hoping to make an Einstein yarmulke manages to assemble the cash and to get a call back from Corbis, it must leap a final hurdle: getting approval from HUJ. Every single reproduction of an Einstein likeness or creation of an Einstein product must be approved by the university, and, according to several manufacturers, the process is extremely demanding.
“They are very, very strict,” says Anton Skorucak, president of the Xump science store. He tried to produce an Einstein watch, he says, but it was rejected by HUJ. Eurographics’ Sinyor had hoped to print a poster of the famous photo of Einstein with his tongue out, but with a tongue stud Photoshopped into the image.
“The whole thing of piercing, which has become so much a thing of young culture —for my generation...I would not disinherit my daughter if she did it, but it is offensive,” says Hanoch Gutfreund, former president of HUJ and one of three people charged with approving or rejecting Einstein product proposals. “If not for that, we would have had no problem.” HUJ, he says, has no set guidelines for what it takes for a product to earn approval. The judgments are made by analysis and intuition. “In some cases, such decisions are made based on your own cultural background—it’s not always something you can define—a kind of common taste.”
As for whether the whole product-driven enterprise runs counter to the spirit of Einstein, Gutfreund points out that the man himself was an avid fund-raiser for the university. “It’s not like the Hebrew University is doing something that would make Einstein turn in his grave,” he says.
The university’s bonanza will eventually come to an end. While laws governing trademark and copyright vary among countries and states, under California law Einstein’s publicity rights extend just 70 years after his death, through 2024. In an effort to maintain its grip on all things Einstein, Corbis and HUJ have trademarked the Einstein name and image. But a trademark will hold up in court only if the company has a history of producing a product. So the items that HUJ rejects today may be what the rest of the world will be free to produce in 16 years. It is a merchandising catch-22: Turn down those Einstein hankies now and fans may be free to blow their noses—all the more enthusiastically, no doubt—into unauthorized, unlicensed hankies when the time comes. Deny an Einstein whoopee cushion today and you may see tomorrow’s Einstein enthusiasts gleefully raspberry each other with little fear of litigation.
Let’s hope those Einstein boxers are worth the wait.