If what you’ve been sitting around and thinking “you know, my life would be complete if only I had a creepy Steve Jobs action figure” – you may be out of luck.
Chinese toymaker, Icons wants to make this doll or as I call it “The Steve Jobs Barbie”:
"And one more thing...."
Recently an NBC station reported that:
Apparently the doll may have problems in several states: Indiana, Illinois, Texas, Connecticut, Georgia, Florida, California, Ohio, Virginia, Washington, New Jersey, Nevada, Nebraska, Kentucky, Tennessee and Oklahoma, all of which have posthumous laws on the books. That’s not great news for In Icons.
Here’s the relevant Connecticut law that I was able to find on this matter (in a 10 minute search on Westlaw). I was expecting to find a statute but I didn’t see one. If you know of a specific statute please send it to me and I’ll be happy to change this post.
The Connecticut Supreme Court has never provided the courts with the elements required to state a claim sounding in appropriation of name or likeness, it has acknowledged the tort’s existence under the law of Connecticut. Goodrich v. Waterbury Republican-American, Inc., 188 Conn. at 127, 448 A.2d 1317; Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983). The Court in Goodrich adopted the Restatement Second of Torts.
Restatement (Second), Torts § 652C, Appropriation of Name or Likeness: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.” Comment (b) to that section provides: “The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff’s name or likeness to advertise the defendant’s business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff’s name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one.” 3 Restatement (Second), Torts § 652C, comment (b).
Comment (a) provides that “[t]he interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others.” 3 Restatement (Second), Torts § 652C, comment (a).
The comment (d) provides in relevant part: “The value of the plaintiff’s name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity … It is only when the publicity is given for the purpose of appropriating to the defendant’s benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded.” 3 Restatement (Second), Torts § 652C, comment (d).
Icons is clearly attempting to use Jobs’ likeness for a commercial purpose. It’ll be interesting to see if the “Steve Jobs Barbie” makes its way to Connecticut stores. If it does, I’m betting on either Jobs’ estate or Apple filing a law suit against Icon in Connecticut.
Hat tip to CT Capitol Report’s Tom Dudchick.
A Public Defender