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Do Celebrities Control the Rights to their Own Halloween Costumes?

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Only ten months to Halloween. Still a lot of time for consumers to figure out which celebrities make the scariest, funniest, or coolest Halloween costumes this year. But in the meantime, a case is about to go before the New York District Court that might help determine when costume manufacturers need to explicitly license a celebrity's image.

On December 17, Forum Novelties filed a lawsuit against the Hebrew University of Jerusalem, which owns the rights to Albert Einstein's image and reportedly earned about $10 million last year in licensing revenue. Forum seeks a declaratory judgment that it can sell an Einstein disguise kit without violating the publicity rights now owned by Hebrew University.

According to the complaint, Forum has been hounded by co-defendant GreenLight, a licensee of Einstein's image, since November 2008. The two parties have been going back and forth since then about necessary rights and money allegedly owed for possible infringement.

Over the past few decades, few celebrities have targeted the costume business for publicity rights violations. Perhaps the biggest and most famous stink ever made on this front was by the estate of Dracula actor Bela Lugosi, which sued Universal Pictures in 1966 after the studio licensed merchandise to the Count Dracula character, including the always-popular Dracula costume. The case went on for 13 years until the Supreme Court of California ruled that Legosi's publicity rights didn't survive his death.

However, that was at a time when publicity rights were seen akin to privacy rights, and before states like California enacted new legislation granting post-death rights to celebrities. Now public figures (and their lawyers) are much more aggressive protecting their publicity rights.

The lawsuit by Forum may turn on whether costumes are merely commercial products or whether there's some form of protected expression involved. Basically, is Forum entitled to a First Amendment defense against publicity rights claims for its use of Albert Einstein's image?

The answer could either pave the way for more lawsuits from celebrities or scare them off.

What do you think?

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