Contrary to this article in PaidContent, Steve Jobs’ estate likely has an enforceable interest against InIcons, the manufacturer of a life-like action figure of the deceased visionary, in the United States. The Right of Publicity grants people like Steve Jobs, as well as ordinary people like me, the rights in our images, names and likeness. Jas Purewal, who publishes the blog GamerLaw, brought the article to my attention.
In the United States there is no federal Right of Publicity. However, the Lanham Act provides some protection against unfair competition and false advertising. Specifically, the Lanham Act prevents the misuse of an individual’s name or likeness in a manner that falsely implies endorsement, affiliation or connection.
The Right of Publicity is primarily a state based law. Each state takes a different approach to the Right of Publicity. Unlike what the columnist in PaidContent, wrote nearly half of the states statutorily recognize the Right of Publicity, and the courts of the other states recognize the right. However, few states approach the Right of Publicity in the same manner. For example, the courts in New Jersey recognize a perpetual Right of Publicity for its residents. In California and Tennessee the Right of Publicity is statutorily defined and fairly broad, extending the rights postmortem. While in other states, like New York, the statutory Right of Publicity is narrowly defined and available only during the life of the individual to which it applies.
Determining which law applies to a living individual is fairly simple. Generally, you need to know which state the individual calls home. Regardless, most states recognize that living individuals have the Right of Publicity. Next time you go to a sporting event, or other event that may be broadcast live or recorded for later broadcast, read the back of your ticket. It will likely include language similar to the following disclosure:
Holder expressly grants the NCAA and its licensees to use Holder’s image or likeness in connection with any live or recorded transmission or reproduction of such event.
Identifying which state Right of Publicity law applies for a deceased individual is more difficult as there are a number of factors that must be considered. It’s not enough to know where the individual was domiciled at the time of death. Recently, a court held that though Marilyn Monroe died in California she was subject to the Right of Publicity law in New York because her will stated that laws of the State of New York applied to her estate.
Here, let’s assume Steve Jobs’ estate is subject to the laws of the State of California as he died in the state. California has enacted the “Fred Astaire Celebrity Image Protection Act” which provides, among other things, that you must have consent for use of a “deceased personality’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods.” The statute defines a deceased personality as “any natural person whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death” whether or not the decadent made money off his/her likeness while alive. Steve Jobs was the face of Apple, his voice and likeness launched many a product which are now ubiquitous (iPod and iPhone anyone). Steve Jobs may not have been a celebrity in the Hollywood sense of the word but there was a definite “commercial value” in his name and likeness while alive. The Fred Astaire Celebrity Image Protection Act grants his estate the ability to protect his image in death just as Steve Jobs did in life.
Finally, the PaidContent article fails to recognize a fundamental tenet of American jurisprudence. The Constitution of the United States provides that each state shall give the laws of the other states “full faith and credit.” Continuing the assumption that the Steve Jobs’ estate will be subject to the laws of the State of California, the courts in the other states will enforce California’s Right of Publicity law against parties who infringe it. Therefore, contrary to the article, the Steve Jobs doll manufactured without permission from the estate would be illegal in all states.