I had an engaging discussion with Ted Johnson of Variety Magazine regarding virtual celebrities earlier this week, and the opportunities and pitfalls presented by the technology that allows famous persons to be flawlessly recreated. The opportunities and pitfalls are, in short, considerable.
Ted Johnson’s article appears in the latest edition of Variety as well as online. You can check it out at this link: http://www.variety.com/article/VR1118055844
The biggest Right of Publicity story of 2012 so far has to be the news that a company called In Icons is preparing to issue a Steve Jobs action figure. In response, Apple reportedly sent a cease and desist letter to In Icons, prompting Tandy Cheung of In Icons to state “Apple can do anything they like…I will not stop, we already started production.”
I hate to break it to them, but if an activity is prohibited by law, the fact that the offending company is already in production would provide no defense or entitlement to proceed. This Steve Jobs action figure is exactly the kind of unauthorized commercial product that the Right of Publicity is designed to address, if not prevent.
Cheung reportedly stated “Steve Jobs is not an actor, he’s just a celebrity,” and that “[t]here is no copyright protection for a normal person.” Aside from the various legal errors in that comment, I can’t help thinking that this line of thought is exactly what gets companies sued for Right of Publicity violations.
Here is a link to the MSNBC article containing Cheung’s quotes and reporting many more details on this story: http://technolog.msnbc.msn.com/_news/2012/01/05/9972437-apple-tries-to-ban-realistic-steve-jobs-action-figure
The MSNBC article states that Apple claims to own the post-mortem rights to Steve Jobs’ name, image and likeness, as manifest by the In Icons action figure. I do not know whether or not Apple has affirmatively made that assertion or if that is an assumption being drawn from the fact that Apple issued the cease and desist letter. All things being equal, I would have assumed that Steve Jobs’ family would be the beneficiary of Steve Jobs’ Right of Publicity. Perhaps Apple does in fact have an ownership interest in Steve Jobs’ Right of Publicity. The Right of Publicity is assignable during life or at death through testamentary documents or intestate succession. The Right of Publicity is also divisible in whole or in part, meaning that several owners could own varying percentages of his Right of Publicity. Alternatively, perhaps Apple is simply handling administrative duties such as protecting against unauthorized use of Steve Jobs’ Right of Publicity. Presumably, Apple’s legal advisors and Steve Jobs’ family and heirs have already addressed this crucial point.
In researching this story, I also came across another write-up about the Steve Jobs action figure on Paidcontent.org entitled “Steve Jobs Doll Legal In Most States, Not Indiana” which can be accessed here: http://paidcontent.org/article/419-steve-jobs-doll-legal-in-most-states-not-indiana/
This article seems to conclude that the Steve Jobs action figure is only actionable in those states with a statutory Right of Publicity in place. The article ends by listing those states with a statutory Right of Publicity but does not include California, which is a fairly important jurisdiction for Right of Publicity matters. California, in 2008, passed legislation confirming that the Right of Publicity does apply to those persons who died prior to passage of the statute. Here’s a link to the amended language: http://rightofpublicity.com/statutes/california-2008-amendment-to-33441
This amendment, signed into law by Governor Schwarzenegger, was in response to a California ruling that concluded that Marilyn Monroe was not entitled to statutory Right of Publicity protection under California law, because of the perceived location of, and law of, her domicile at the time that she died in 1956. California’s 2008 bill was in fact just a clarification that the law indeed always was supposed to apply to those who predeceased passage of the statute.
Right of Publicity litigation usually involves application of the Single Publication Rule, which in general terms allows a claimant to address the totality of the infringement through one cause of action. In the absence of such procedural efficiency, a claimant might be forced to go state by state, litigating the same basic nucleus of facts, against the same parties, over only those activities that took place in that particular state. If courts are overburdened now, which they generally are, just imagine the inefficiency and backlog that such an approach would generate.
Thankfully, this is not how Right of Publicity litigation is typically conducted.
As for Steve Jobs and whomever is the appropriate party to assert a claim for violation of his Right of Publicity, I am confident that the law would back them up if they have to litigate in response to a Steve Jobs action figure. If not, one would have to wonder why the Right of Publicity exists in the first place.