Can I use the names of famous people in an educational game about their works?

Question

I want to create a philosophy educational card game video game that features philosophers on many of the cards. For most philosophers, this is fine, but for philosophers born in the last 100 years this is a real headache in knowing whether or not the likeness is protected.

The reason why they are cards is because it is supposed to represent how philosophers have been reduced to consumable toy ideas, mass produced by a company and used as teaching aids in the story, and the main characters learn more about the philosophy and works of each philosopher through researching the cards. The philosophers are not part of the story themselves, they are just there on the cards as teaching aids. All of the characters in the story are original creations.

For now, since the game is free, I am just using photos of the philosophers, but I plan to draw my own art for them. So the photo rights will not be a problem when/if I decide to go commercial. Any promotion for the game only features philosophers born over 100 years ago (like Karl Marx or Aristotle) so I can't imagine those images being zealously protected.

I have no intention to manufacture the cards physically outside of a limited art print production featuring my own artwork. So it won't be an official TCG or anything.

Does this fall under first-amendment rights?

Answer 1

There is no copyright on the name of anyone. That certain people have been known as philosophers, and have put forth particular ideas are facts, not subject to copyright, as long as no one else's description of those ideas is copied or closely imitated. This is true in the US, and also in most of not all ,other countries.

Rights in the image and likeness of a person vary among US states, and also between different countries. In most US states any such rights end with the persona's death, or only continue for a few years after death (10 years in some cases). The year of birth is not, as far as I know relevant. The exact length of such rights should be checked if any person being pictured is alive or has died fairly recently. Such rights can protect against the commercial use of even an original (not copied) representation of the person's likeness.

About Einstein

Greenlight claims to represent Hebrew University of Jerusalem and to hold marketing rights on images of Einstein for publicity purposes. This is mentioned in "Who Owns Einstein's Face?" From The Atlantic

Hebrew University of Jerusalem sued GM over the use of an image of Einstein in an advertisement. However, they ultimately lost. As reported by CDAS:

United States District Judge A. Howard Matz rejected Hebrew University’s claim that New Jersey common law provides for an indefinite duration of the postmortem right of publicity, or that it alternatively is coextensive with copyright law and lasts for a minimum of 70 years after a person’s death. Instead, the Court ruled that New Jersey common law postmortem publicity rights endure for no more than 50 years after a person’s death. Because Einstein died in 1955, the Court’s ruling means that Einstein’s publicity rights are now in the public domain.

...

Judge Matz concluded that the New Jersey Supreme Court would likely limit the postmortem right of publicity under New Jersey common law to endure no more than 50 years after a person’s death. He noted that the New Jersey Legislature has twice declined to enact a statutory postmortem right of publicity, and given the sparse New Jersey case law on the issue, “it is likely that the New Jersey Supreme Court would perceive pitfalls in allowing an unlimited or lengthy term to the right of publicity.” Comparing the right of publicity to New Jersey’s common law right of privacy, the Court recognized that 50 years was a “reasonable middle ground” to allow a deceased celebrity’s heir to benefit from the right of publicity, while still respecting the “public’s interest in free expression.”

Mercury News reported on the same case, saying:

But the judge said descendants’ right to control someone’s image after his death must be balanced with the public’s right of expression.

He also ruled 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.