< Who owns your image after you die?

Transcript

Friday, January 13, 2012

BROOKE GLADSTONE:

Just a few months after the death of Apple co-founder Steve Jobs, a Chinese toymaker called In Icons is releasing an action figure of the tech visionary. Coming in at around 100 dollars, the 12-inch doll is an eerie replica of Jobs, complete with his signature jeans, black turtleneck and glasses.

In Icons was set to release the doll in February, but the U.K.'s Daily Telegraph reports that Apple has thrown up a roadblock by threatening legal action. Apple has experience doing this; it killed off an earlier Chinese Jobs doll back in 2010.

But the law related to the dolls of living people do not necessarily extend to the dead. Jeff Roberts is a legal writer for paidcontent.org. Jeff, welcome to On the Media.

JEFF ROBERTS:

Nice to be here, Brooke.

BROOKE GLADSTONE:

So at this point, has Apple actually filed any kind of lawsuit?

JEFF ROBERTS:

I haven't seen any complaint filed in the US yet. I'm not clear where The Telegraph got their information, but I suspect at this point they're just sending a lot of very scary-sounding letters. In Apple's case, I wouldn’t call it a bluff, but I'm just not sure how they're gonna follow through in this event.

BROOKE GLADSTONE:

This is a really complicated area of the law. There are copyrights and trademarks, which extend beyond a person's life. And then there are personality rights, which don't necessarily go beyond the grave.

JEFF ROBERTS:

Copyrights and trademarks are used to protect artistic works - paintings and sculptures - with copyright and brands with trademark. But what about sort of dignity to people?  What if I get it into my head to make a Brooke Gladstone doll and start selling it on the streets of New York?

BROOKE GLADSTONE:

I would so love that. [LAUGHS]

JEFF ROBERTS:

Some may not and may regard it as an intrusion of their privacy or perhaps think it’s wrong that I’m using your image, without your permission, to make money. So in the mid-20th century in American law there started to be a new species of rights called personality rights.  A lot of them are focused on the right to privacy and some are focused on the right to publicize your image. All states sort of have personality rights for the living. Like you have a right not to be defamed. However, that law does not extend after you’re dead.

And then something happened in the last couple of decades. They have taken these personal rights, which are meant to sort of protect individual dignity, and turned them into property rights. These are sort of commercial rights, the right to, you know, as a word, get rich off your image. Only about maybe 15 or 16 states have laws on the book. A couple more have them at common law. But some states, including New York, don’t have them at all.

BROOKE GLADSTONE:

Right. And in terms of a doll, when I am alive can I squash a doll in every state?   

JEFF ROBERTS:

Yes, while you're living you have a right to control your image. I can’t go out and take your image and use it to sell, you know, cars or sweaters or whatever I should choose to sell. After you’re dead, it's a different matter, depending where we’re living.

BROOKE GLADSTONE:

Okay, so Steve Jobs - the name is not trademarked, the person is not an artistic expression and can't be copyrighted. So Apple's best bet, I guess, is to argue a

personality right. But you say even there

they don’t have a case.

JEFF ROBERTS:

For Apple to do something, Steve Jobs would have had to have allowed Apple to inherit his personality rights in the State of California. We don’t know what's in Steve Jobs’ will, and I don’t think we ever will.

I suspect Steve Jobs probably left those rights to his family, not to Apple.

But leaving that aside, I mean, should Steve Jobs’ children and his spouse decide to assign those rights to Apple and let it enforce those rights on their behalf, then they would be in business. However, that will apply in California. It’s not gonna apply in New York though.

BROOKE GLADSTONE:

Because California has strong image protection rights because of its celebrity culture?

JEFF ROBERTS:

That’s exactly right.  There's an act named after Fred Astaire from a, a decade or two ago that actually extended these retroactively to dead people.

BROOKE GLADSTONE:

Isn't there another case happening right now involving Hebrew University and a costume  company in New York City and the face of Albert Einstein?

JEFF ROBERTS:

That's right. Einstein bequeathed his general intellectual property rights, and since that university has been very aggressive about suing anyone who would do something with Albert Einstein. I think they have trademarked the name “Einstein. “They probably have a trademark to, you know, mustache and glasses, something like that. Needless to say, they're running around enforcing it everywhere they can and making a lot of money.

BROOKE GLADSTONE:

Einstein left his papers and literary rights to Hebrew University, but he died in New Jersey and under Jersey law a person has the right of publicity only if he or she commercially exploits their name before they die, according to the costume company's lawyer. And so, Hebrew University can't inherit rights from Albert Einstein which didn't exist at the time of his death.

JEFF ROBERTS:

That's what happened with Marilyn Monroe, a famous case here in New York a couple of years ago, where essentially the rights didn't exist, so the court found she couldn't have assigned them because they didn't exist when she was alive.

BROOKE GLADSTONE:

Einstein never made money off of his image but, let’s face it, Jobs did. He was the face of Apple, he was the sine jour [LAUGHS] of all of that attention.

JEFF ROBERTS:

Very true, but I do find it interesting that he decided not to trademark his name. Some  celebrities have. I believe Britney Spears has. A lot of them do these days. Steve Jobs was a very big supporter of intellectual property, so it would surprise me this never occurred to him. I just wonder if for him maybe trademarking himself was a bridge too far.

BROOKE GLADSTONE:

Jeff, thank you very much.

JEFF ROBERTS:

Thanks very much, Brooke.

BROOKE GLADSTONE:

Jeff Roberts writes about legal issues for paidcontent.org.