Apple’s lawyers have a fearsome reputation for defending the company’s intellectual property. But it sure looks like they’re bluffing in the controversy over a new Steve Jobs doll.
A UK newspaper caused a stir yesterday when it reported that Apple (NSDQ: AAPL) had threatened legal action against a Chinese company that plans to sell an eerie replica of its late founder starting next month. The Daily Telegraph said Apple claims to own rights to Jobs’ likeness.
Dead or not, Steve Jobs is still huge news and the story went viral. Media outlets, noting that Apple had stopped the release of another Jobs doll in 2010, reported the story as a warning to other companies who would dare appropriate the property of mighty Apple.
But there is a huge problem here — Apple’s legal claim is largely bogus. While people can indeed own rights to their likeness, those rights usually apply only to living people. Unlike other forms of intellectual property like patents or copyrights, image rights do not survive beyond the grave in most places.
Under American law, so-called “personality rights” exist only at the state level — there is no federal law. And only about a dozen states recognize image rights after death. Oddly, it is Indiana that has the strongest protection, restricting commercial use of a person’s image for 100 years after their passing.
But in New York and most other places, there is no protection at all. This was confirmed five years when a court in the state found that no one had the exclusive right to market Marilyn Monroe. Efforts to change the law have so far failed.
What this means is that Apple’s warning about the doll is an empty threat in most places. It may not even be able to stop others from using the name Steve Jobs as, surprisingly, the term does not appear on the company’s long list of registered trademarks. A company spokesperson did not immediately reply to a request for comment.
Apple’s lack of control over the doll is in many ways a welcome reality check. Remember that Steve Jobs was not just a design genius but also a control freak who used layer after layer of intellectual property to create legal force fields around his products. While this boosted Apple, it also shut out many other innovators and helped give rise to the destructive litigation that now mars so much of the technology sector.
The ghost of Jobs and Apple fans may take comfort that they can keep the doll out of at least some states, including his home of California (see full list below). And likewise some countries, including Germany and Argentina, have national laws that protect image rights after death. In other places, though, they must simply hope that good taste will keep people from buying a lifelike Steve Jobs doll with removable hands (a famous quote suggests this is unlikely.)
The Steve Jobs doll will be off-limits in the following states, based on a list in a recent scholarly article: Indiana, Illinois, Texas, Connecticut, Georgia, Florida, California, Ohio, Virginia, Washington, New Jersey, Nevada, Nebraska, Kentucky, Tennessee and Oklahoma.