Apple Sues Steve Jobs Figurine Maker Over Likeness

eldavojohn writes "Techdirt brings word that China-based MIC Gadget, the maker of a four inch 'SJ figurine,' is being sued by Apple to stop making the product. The fairly well detailed figurine went for $80 and the manufacturer offered updates as it quickly sold out of the first 300 and was subsequently sued before starting a second batch. The glasses, the black turtle neck, the salt and pepper beard, the blue jeans and the new balance sneakers — that is Steve Jobs' look and you don't even have to consider the smug look or the iPhone 4 in his hand while standing in a classic press event spotlight pose. So far, this notice for copyright infringement only exists for the 'SJ figurine' (no mention of Apple or Jobs in the store listing) but it appears other companies are allowing MIC Gadget some leeway with trademarks or perhaps they just haven't noticed yet. Could it be that Apple is just concerned that their followers are purchasing lead-painted false idols?"

Comments

Father Steve expressly forbid this!

[Anonymous Coward]

"Thou Shalt Not Make Graven Images or Question His Profits." It's right there in the Holy Mac User Guide, people!

What is the basis for the suit?

[brennanw]

Has Apple trademarked Jobs' image? Or is there some kind of international law that covers selling the likeness of someone without their permission?

I'm not being snarky, I genuinely don't know.

Re:What is the basis for the suit?

[BobMcD]

Has Apple trademarked Jobs' image? Or is there some kind of international law that covers selling the likeness of someone without their permission?

I'm not being snarky, I genuinely don't know.

I had this same thought, and further, I'm pretty confident that there's no trademark issue here. Apple doesn't make figurines. The whole thing is a caricature and doesn't threaten the computer business in any way. Now, if Apple WERE in the action figure business, or had entered into a contract with someone who was, then we might have an issue of greater importance.

Re:What is the basis for the suit?

[BasilBrush]

Look more closely at the base. It's the shape of the Apple logo. For sure, that's Apple's most important trademark. And trademarks have to be protected.

Re:What is the basis for the suit?

[MachDelta]

If you follow enough links, it shows a snippit of the C&D email they received:

Unauthorized use of a person’s name and/or likeness constitutes a violation of California Civil Code Section 3344, which prohibits the use of any person’s name, photograph or likeness in a product without that person’s prior consent

Re:What is the basis for the suit?

[morgan_greywolf]

The figurine maker could easily make an argument on fair use grounds -- so long as the figurine doesn't make portable media players, smartphones, computers or other consumer electronics, I'd say they were pretty safe to claim fair use as an affirmative defense (IANAL, etc.) (And, no, I don't forsee Apple going into the figurine business.) (The rules that apply to trademark fair use aren't the same as the rules that apply to copyright fair use, but the legal intent is roughly the same.)

Where they get into trouble is in using Steve Jobs' own image without his consent; except that Apple doesn't have ground to sue for Steve Jobs' image, only Steve Jobs does.

Re:What is the basis for the suit?

[knappe duivel]

if I was an Apple shareholder I'd be annoyed Jobs was using the company resources for his own personal purposes.

If you were an Apple shareholder you should be very, very, very grateful to Jobs for making you a lot of money.

Re:What is the basis for the suit?

[arisvega]

The t-shirt seller lost.

You expected Chuck Norris to lose?

Re:What is the basis for the suit?

[Monkeedude1212]

Woah - how does that fall under fair use grounds?

From what I understand, THESE constitute fair use:
commentary, criticism, news reporting, research, teaching, library archiving and scholarship.

I can't stamp a Microsoft logo on a coffee mug and claim fair use. What kind of wacky world are you living in?

Re:What is the basis for the suit?

[Bobartig]

Keep in mind Trademark rights carry an affirmative duty to police the mark. If you allow permissive, unrestricted commercial use of your marks by others, courts can later use that against you when you try and bring a legitimate trademark suit against a party that is really infringing, like making knockoff "iPud" music players or something.

So, what is the test to determine what a company needs to vigorously police against, versus what is non-infringing use? No one really knows. This is why companies go after anyone/everyone like they do. The court may end up saying, "There's not TM issue here, everyone go home." but you can't know that before you litigate. So, it is actually perfectly rational for them to sue. Even if their claims have no merit, they have satisfied their requirement to police the mark by challenging others' uses. When the real infringement occurs, they will be able to assert their rights and win.

Re:What is the basis for the suit?

[Bobartig]

You are confusing copyright "fair use" with trademark "fair use", and trademark "fair use" with trademark rights! You are kind of all over the place. As for CR vs. TM fair use, same name, different standards. Both are a complete doctrinal minefield in terms of the case law associated with them.

Any party can "easily make an argument" for fair use, but no one, and I mean NO ONE, knows if they will prevail on that claim. The law is just too erratic and fractured in this area.

Trademark fair use requires, as Monkeedude1212 says, commentary, criticism, news reporting, and it must specifically NOT be commercial use. Slapping a logo on something and selling it, that's commercial use.

Re:What is the basis for the suit?

[Bigjeff5]

The essence of trademarks is that they cannot be used to impersonate a brand.

In most cases the specific industry involved is very important, but in some cases the infringing company can be in a completely different industry and still infringe.

For example, if some guy named George Apple starts a furniture business and decides to name it "Apple's Fine Furniture", then there isn't going to be any trademark infringement. It's obvious he doesn't care about Apple Inc's product image, he simply named the company after himself.

Now, if that same guy decides to make chairs that happen to look exactly like the Apple logo, then he is almost certainly guilty of trademark infringement. In that case, he is clearly trying to use Apple Inc's brand to boost his own sales.

This case would fall into the latter. The figurine maker is clearly trying to use Apple's brand to boost their own sales, and that violates trademark law. If it were just a guy on a platform in a turtle-neck holding a cell phone it would be no problem. But the Apple logo as the platform makes it clear they are attempting to profit off of Apple's brand name.

Likenesses of people are ok, as far as I am aware, but logos are not.

Re:What is the basis for the suit?

[amicusNYCL]

If the state finds the package, inspects it, and realizes it is contraband, they will confiscate it. You can get a lot of things online shipped to you, but not all of them are legal where you live. People just rely on the state not inspecting the package to realize what it is. Even legal things sometimes get confiscated. I once shipped a scale-model of a handgun that was actually a lighter, and that never made it to my house.

OK, maybe the 12-inch switchblade in the box was what got it confiscated, and the "gun" just showed up on x-ray.

Fine, fine, maybe it wasn't the best idea to ship a "gun" and giant switchblade from the Vatican to the US, but it was the closest post office at the time.

I have seen a disguised shipment of marijuana between people in different states get confiscated though. That showed up on the UPS tracking page and everything. My roommate lost sleep waiting for a call from the police that never came, they can't really charge either the sender or receiver. The receiver might know nothing about the package and be uninvolved, and the recorded sender might not be the person who actually shipped it. They just take it and... keep it, I guess. To go with their gun lighters and giant switchblades.

Hold it wrong?

[vlm]

The glasses, the black turtle neck, the salt and pepper beard, the blue jeans and the new balance sneakers

It also talks to you, although the speech cuts off if you hold it wrong.

I thought that this was decided

[Chrisq]

It looks like he has a case under Chinese law:

In the People's Republic of China, rights of personality are established by statute. according to article 99 and 100 of the General Principle of Civil Law of the People's Republic of China, the right of name and the right of image are protected. It is prohibited to use other's image for commercial use without the person's consent.

Personality Rights

[eldavojohn]

It falls under personality rights which varies country to country but in the United States it is proving to be a very dynamically changing landscape.

In reality this is probably just an annoyed Apple lawyer with too much time on his hand muscling a little guy into submission. They're foreign and can be made to look like leeches, I'm sure. The real kicker is that, as the lawyer on Techdirt mentions, there's no clear motive for this, is Apple making a competing figurine that they're losing sales on? Is the figurine somehow damaging to Mr. Jobs? If it's a parody of Steve Jobs doesn't that fall under fair use? So many questions but the answer will always be "Who has the most money and lawyers?" And that's Apple.

Re:Personality Rights

[BasilBrush]

It falls under straightforward trademark infringement for the shape of the base of the figurine.

Re:Personality Rights

[suv4x4]

The real kicker is that, as the lawyer on Techdirt mentions, there's no clear motive for this, is Apple making a competing figurine that they're losing sales on?

the figurine is sitting on a big perfectly Apple-logo-shaped stand, the device in the figurine's hand has an iPhone UI sticker, and again, Apple logo on its back.

Not suing is setting a precedent that you can sell, literally, Apple branded merchandise without Apple's involvement.

Allowing people to make Apple-like products and Steve Jobs-like products also means Apple is losing control over the message of what Apple says to people.

The only way to not say something wrong to people, is to never say anything, and as we know Apple is notoriously tight-lipped. If third parties shape Apple's brand and perception, they lose a huge advantage they have in the moment in terms of control.

Apple is an extremely valuable brand, and you surely realize if they let one company sell these, thousands will follow soon.

Of course, many other companies may choose to ignore it, but that is not a problem of "morality". It's a matter of choice: Apple have the right under law to avoid those figures being produced, and they're using their rights.

Re:Personality Rights

[Thinboy00]

Not suing is setting a precedent that you can sell, literally, Apple branded merchandise without Apple's involvement.

But the same company is, literally, already doing that!

bad likeness

[deathguppie]

I don't see how this even closely resembles Steve Jobs.. the head is waaay to small..

Steve Jobs

[Anonymous Coward]

probably knows his customer base and doesn't want his likeness lubed up and inserted in unseemly places.

why would anyone buy this?

[js3]

Are turtle necks really that hot?

Perfect Likeness!

[Sponge Bath]

Steve has an insanely big head!

He's a public figure

[l0ungeb0y]

Sorry Apple, but you can stuff this "cease and disist letter" right up your ass. Steve Jobs is a public figure and this work can be considered a parody, regardless of it's "for profit" status. Don't you have an App in the App Store to censor out of existence?

I have plenty of Apple products, but it seems with every passing day Apple finds a way to make me like them less and less.

I just checked the MIC Gadget site

[Cornwallis]

The SJ Figurine doll is marked "Discontinued" and has been replaced by one called "Butt-Head Astronomer".

Is this available in wax?

[hey!]

In a gift box along with a half-dozen 4" steel hat pins?

simple business

[Thud457]

Apple hates fun.

That's because GNU/fun is FOSS.
Apple prefers iFun(tm), which is under the BSD license.

In other news

[Locke2005]

Steve Balmer is insisting that Microsoft sue anybody making a figurine that looks like a complete asshole...

Misses the point completely

[93 Escort Wagon]

Read the article, people. Apple's not objecting to a Steve Jobs statue; it is complaining that "statue Jobs" is wearing chinos and a sweatshirt - that's diluting the brand.