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It's funny.  Laugh. The Courts Toys Apple Idle

Apple Sues Steve Jobs Figurine Maker Over Likeness 172

Posted by CmdrTaco
from the false-idols-before-me dept.
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?"
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Apple Sues Steve Jobs Figurine Maker Over Likeness

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  • by Anonymous Coward on Tuesday November 30, 2010 @10:34AM (#34388034)

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

    • I can totally see a political-cartoon with Steve (with big head) looking at the statue... "I mean, it looks nothing like me... I'll sue!"
    • by Darinbob (1142669)
      They're just iDolls.
    • I guess Steve Jobs is now owned by Apple.

      My initial thought is that this case can be thrown out because Apple isn't a party to the action.

      Steve Jobs is the one that should be suing them.

  • by brennanw (5761) on Tuesday November 30, 2010 @10:38AM (#34388092) Homepage Journal

    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: (Score:3, Informative)

      by BobMcD (601576)

      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.

      • by nomadic (141991)
        What I don't understand is how Apple has standing to sue; Jobs should do his dirty work himself, and if I was an Apple shareholder I'd be annoyed Jobs was using the company resources for his own personal purposes.
        • Apple has the standing to sue, because the most obvious trademark being infringed is the Apple logo that forms the base of the figurine.

          • by nomadic (141991)
            Ahhh, alright that makes more sense. Still idiotic for them to sue.
            • Re: (Score:3, Informative)

              by Bobartig (61456)

              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

          • As a work of parody, I don't think Apple has any kind of a case for trademark or copyright infringement. The most likely case I would think is that California confers on people a right of publicity. Again, I think this is a work of parody, and a very good one at that. I can't tell if it's meant to be an homage or a mockery of Jobs.

            • by Bobartig (61456)

              Keep in mind that the balance between right of publicity and 1st amendment rights is still very fuzzy. Some courts apply a "transformative" (Saderup, Cardtoons) test borrowed from copyright, under which parodical uses can be allowed. Some courts use a trademark-like "invokes the idea of the person in the minds of the consumers" (Midler, White) under which even radically altered images would still infringe the right.

            • There's no parody here. This is a straightforward as if a company was selling a Star Wars figurine with a Star Wars logo on it without permission.

          • That's trademark, and as long as it doesn't dilute the Apple products it can be used. This doesn't dilute Apple's products. Just because a company thinks they can lock down the trademark doesn't mean that they can claim that someone using it is doing so to dilute Apple's product/company.

            Even so, it appears that they are suing due to Jobs' image being used too.

            In order to gain anything from this they'll have to prove they tried to work it out. They can't just see the item and then sue wildly. I'm sure th

        • Re: (Score:3, Insightful)

          by knappe duivel (914316)

          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.

          • Individual shareholders don't make gobs of money, though they probably make a decent amount off the dividend. Being the case, it is still up to the shareholders to reign in the BOD. These types of lawsuits can be seen as senseless spending and be condemned by the shareholders rightfully, especially if it does turn out that Apple is suing re: Jobs' likeness.

    • by BasilBrush (643681) on Tuesday November 30, 2010 @10:46AM (#34388158)

      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: (Score:2, Insightful)

        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

        • I'm not sure TM laws work like that. If you have what is obviously supposed to look like someone else's brand, not just use the same word or have a logo with similar elements, then I doubt it matters if you're in a different industry.

          • Re: (Score:3, Informative)

            by Bigjeff5 (1143585)

            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

            • by Ihmhi (1206036)

              Either way, in 50 years however few of the 300 figurines already shipped are going to be worth a fair bit more than $80, I'm sure.

            • Not necessarily. His Apple stylized chair doesn't necessarily dilute Apple's product/company.

        • Re: (Score:3, Insightful)

          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: (Score:3, Interesting)

          by Bobartig (61456)

          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 Mon

        • "The Lanham Act permits a non-owner of a registered trademark to make "fair use" or "nominative use" of a trademark under certain circumstances without obtaining permission from the mark's owner. The fair use and nominative use defenses are to help ensure that trademark owners do not prohibit the use of their marks when they are used for the purpose of description or identification. Fair use or nominative use may be recognized in those instances where a reader of a given work is clearly able to understand t

      • I though Apples trademark has been the color white and ipod/phone for ages and not the Apple.

    • Personality Rights (Score:4, Insightful)

      by eldavojohn (898314) * <eldavojohnNO@SPAMgmail.com> on Tuesday November 30, 2010 @10:49AM (#34388200) Journal
      It falls under personality rights [wikipedia.org] which varies country to country but in the United States it is proving to be a very dynamically changing landscape [usatoday.com].

      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.
      • by BasilBrush (643681) on Tuesday November 30, 2010 @11:01AM (#34388344)

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

        • by Urkki (668283)

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

          Does Apples trademark cover figurines? I mean, it certainly doesn't cover for instance McIntosh apples...

          So it's far from clear if putting a figurine of a CEO standing on the logo of the company is trademark infringement or not.

          • It's clearly the exact Apple logo, and intended to be so.

            • by Urkki (668283)

              It's clearly the exact Apple logo, and intended to be so.

              Of course, but that isn't necessarily trademark infringement. For example a newspaper can use Apple logo in an article about Apple company.

              So printing an image of Steve Jobs standing on Apple logo in a newspaper would be fine . Wether this figurine case is covered by same rules or not, well, I guess that'll be determined in court now, unless they settle.

              And actually, it's using Apple logo when not meaning specifically Apple, which is almost automatically trademark infringement, and must be defended against

              • Of course, but that isn't necessarily trademark infringement. For example a newspaper can use Apple logo in an article about Apple company.

                Indeed it can. Solely for means of identification, and provided that use doesn't confuse the public into thinking they are associated with the owner of the trademark. This case fails the fair use test on both counts.

      • Re: (Score:3, Informative)

        by suv4x4 (956391)

        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, an

        • Re: (Score:3, Informative)

          by Thinboy00 (1190815)

          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 [micgadget.com]!

      • The real kicker is that, as the lawyer on Techdirt mentions, there's no clear motive for this...

        Apple's motive is clear, someone is making money off of people who are members of the cult of Apple and it isn't Apple. That is money they should be spending on Apple products. You say you've got an Ipod, Iphone, Ipad, Mac Air, MacBook and a Mac desktop, well if you still have money left buy a second one of one or more of those.

      • by CODiNE (27417)

        It's a parody if it's mocking him, if it's just a representation of him they're profiting off his likeness.

        Batman shagging catwoman is a parody.
        Batman statues being sold at comic-cons is trademark infringement, that kind of thing.

        • by FaasNat (522755)
          Batman is a character created by DC. Steve Jobs was not created by Apple (though some would argue...).
    • by alen (225700)

      Pretty sure that there is a law where you can't make money off someone else's likeness. It's one thing to sell advertising for a show where you film it on a public street or function and people know that they will be filmed.

      in this case they are selling a doll

      even the reality shows are scripted and anyone who appears in a non-public area has signed a contract agreeing to be on the show

      • I don't think that's true. Madamme Tussauds usually have the subjects of their waxworks come to be measured and photographed for the model makers. But some of the waxworks are done without the celebrity's cooperation, and apparently that's OK.

      • by petes_PoV (912422)

        Pretty sure that there is a law where you can't make money off someone else's likeness.

        if there was such a thing all the tribute bands (bootleg beatles etc.) would have a tough time. However since they appear to be thriving - even though the Beatles "Apple" is nearly as protective as the other one - it appears as if there is not such a thing, even in China..

        Anyhow, surely SJ's image is a personal property - something that he, personally should be protecting - not something that a company would get involved in (unless Apple somehow think they own Jobs)

    • by LWATCDR (28044)

      Actually I believe there is. Imagine in a few years if CGI gets good enough. You could have all sorts of "issues" come up. The new Tron movie will show if it is possible now.
      I believe there are big exceptions for news and such.
      Of course I think Apple should just let it go. Frankly it is just a good but of fun.

    • The only thing that Steve Jobs could sue for is that the figurines violates his right of publicity and use his celebrity to sell a product that he did not endorse. But Jobs himself and not Apple would have to assert that right. Since the figurine does not actually endorse a product but the product as a work of art, Jobs would likely lose that case though as First Amendment rights to free expression often trump right of publicity. The iPhone case that looks like a NES controller would more likely be found

      • by vlm (69642)

        Since the figurine does not actually endorse a product but the product as a work of art, Jobs would likely lose that case though as First Amendment rights to free expression often trump right of publicity.

        The generally accepted definition is "single and original work of art". So if an artist made exactly one statue and sold it to a wax museum type of establishment, the artist would be OK. Multiple bronze castings are getting questionable. But hundreds of copies, that's well into commercial work. Note that I am not your lawyer, but I have researched this. Because of the rise of rapid prototyping and CAD/CAM/CGI, its only a matter of time before we can buy computer generated "single and original works of

      • by Bigjeff5 (1143585)

        Or, you know, the oodles of trademarks the figurine infringes on (Apple logo multiple times, and iPhone likeness).

    • by MachDelta (704883) on Tuesday November 30, 2010 @11:05AM (#34388396)

      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

    • by lxs (131946)

      They did and they were planning to issue their own toys.
      Liver sold separately.

    • by shentino (1139071)

      Quite a point.

      Barring such a trademark, it would be Steve Jobs, and not Apple, that has standing to sue.

    • by milkmage (795746)

      you can't sell a pro sports likeness (w/o a license) either... so why wouldn't it apply here?

      this has a big fat NBA logo on the package
      http://www.amazon.com/McFarlane-Toys-Sports-Picks-Bryant/dp/B002W9AC8C/ref=dp_cp_ob_t_title_2 [amazon.com]

      i wonder if it still holds true if you remove the Lakers jersey and logo and just show him in street clothes - you can't say "Kobe Bryant" without thinking of the Lakers, similarly, "Steve Jobs" and Apple.

      @nomadic - if you tried to sell a KB action figure, I'm pretty sure it would be

    • by camperslo (704715)

      Or is there some kind of international law that covers selling the likeness of someone without their permission?

      There was a previous case involving Jeff Stryker, but they weren't copying the whole body...

      http://en.wikipedia.org/wiki/Jeff_Stryker [wikipedia.org]

    • by Bobartig (61456)

      There are copyright claims for the use of the Apple logo pedestal, and the tiny iPhone sculpture. Apple owns these designs and can assert rights over their use and importation. They may not prevail if the makers can show some fair use defense, but that analysis is complex and all over the place. The amount of copying done, and commercial use of the images stacks against them.

      Trademark is weird. The threshold matters are whether the use would be likely to cause 'consumer confusion', and if they brought a dil

  • by vlm (69642) on Tuesday November 30, 2010 @10:39AM (#34388094)

    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.

  • by Chrisq (894406) on Tuesday November 30, 2010 @10:44AM (#34388140)
    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.

    • by erroneus (253617)

      I can only respond with what I understand of U.S. law. This figure, in my opinion, is a parody figure and should be protected by free speech.

      So far, according to what I have read, this is only a C&D letter from a lawyer. I have not seen this letter or the law suit claimed in the headline of this story. The stories I have read make no mention of a law suit at all. If a suit were filed, we could then have a better idea as to what law(s) are applicable in this case. I do know that it wouldn't go over

      • by Chrisq (894406)
        We are talking about Right of Publicity [wikipedia.org], which don't have to be registered. It appears that in the USA it is decided at a state level.

        To date, twenty-eight states are on record as recognizing the Right of Publicity. Indiana is believed to have the most far-reaching Right of Publicity statutes in the world, providing recognition of the right for 100 years after death, and protecting not only the usual "name, image and likeness," but also signature, photograph, gestures, distinctive appearances, and mannerisms.

        • by Chrisq (894406)
          Since he is suing the manufacturer in China to stop making the figurine, and not just stop distribution in the USA, I believe that this will be under Chinese law.
          • by erroneus (253617)

            I must have missed it. Where does it say that "he" (I presume you mean the Apple Computers company) has filed a law suit anywhere?

    • by grumpyman (849537)
      What the heck do you mean? I think the Chinese should focus on taking down this one first [deviantart.com].
  • I don't see any Apple logo and the phone is too generic ... so what here is being unlawfully copied? It can't be Steve Jobs's likeness ... unless he is a CGI construct, robot or bio-engineered creature. Right of publicity infringement maybe.

  • by deathguppie (768263) on Tuesday November 30, 2010 @10:51AM (#34388214)
    I don't see how this even closely resembles Steve Jobs.. the head is waaay to small..
  • Umm... what right does Apple have to sue over Steve's likeness? Shouldn't suit be brought by Steve himself rather than Apple? Did he sign over rights to his likeness to Apple?

    I could see it if perhaps the figurine were based on a copyrighted image owned by Apple that contained Steve, but unless he's in a very specific pose or something it might be hard to prove.

    Next thing we'll see is Apple trademarking Steve altogether and using him for their logo...
    • Take a closer look at the base of the figurine. Recognise it?

      • by Mechanik (104328)

        Take a closer look at the base of the figurine. Recognise it?

        That will teach me to not RTFA and just go by the summary. The figurine clearly has an Apple logo for its base. However, the summary and article both make it sound as if Apple is suing over Steve's likeness, not the use of their logo. So, you can understand why I found it all confusing.

  • by js3 (319268) on Tuesday November 30, 2010 @10:58AM (#34388308)

    Are turtle necks really that hot?

    • by Abstrackt (609015)
      My theory is that this effigy emits some kind of highly localized reality distortion field and that enough of them in one place turn it up to 11.
  • by Sponge Bath (413667) on Tuesday November 30, 2010 @11:04AM (#34388386)
    Steve has an insanely big head!
  • Can't believe there isn't vast precedent here. Companies have been making and selling figurines of famous people since before there were famous people. But of course Apple gets some press out of it.

  • by l0ungeb0y (442022) on Tuesday November 30, 2010 @11:22AM (#34388626) Homepage Journal

    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.

    • Buying Apple products, furthers Apple's ability to control the universe.

      Simply do not buy their overpriced, under featured junk.

    • I thought the figure was not a parody at all, to me it was more like something you'd put in a shrine. Scary stuff.

      Although if they also made a similar Bill Gates and Balmer figure, you could put them in one of those old vibrating electronic hockey sets and let them battle each other for supremacy.

  • ... until there's an action figure of you.

  • Steve Jobs look-alike day!

    http://improveverywhere.com/ [improveverywhere.com]

    Imagine armies of folks emerging from the New York subways, all dressed up in Steve Jobs black turtlenecks and glasses. Even children, as well! They all head toward the NYC Apple Store. Half the onlookers are shocked, the other half laugh their asses off.

  • They just have to rename the figurine to "Sosumi".

  • by Cornwallis (1188489) on Tuesday November 30, 2010 @12:07PM (#34389438)

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

  • by hey! (33014) on Tuesday November 30, 2010 @12:29PM (#34389800) Homepage Journal

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

  • And, have it covered with veins. Which I'm sure the Macoholics will appreciate just in time for Christmas.

  • by Joao (155665)

    I'm far from being an Apple fanboy or defender. But it doesn't look like a lawsuit to me. They send them an email telling the company to stop. It wasn't even an official cease and desist letter.

  • I know I'm not a lawyer... and I know better than to try to make up new IP rights on the fly.

  • by Locke2005 (849178) on Tuesday November 30, 2010 @02:15PM (#34391632)
    Steve Balmer is insisting that Microsoft sue anybody making a figurine that looks like a complete asshole...
  • where Parody is protected free speech.
  • a black turtleneck?

    Because that's all it would take for me to infringe on his slightly dimmer sense of style.

  • by 93 Escort Wagon (326346) on Tuesday November 30, 2010 @02:20PM (#34391706)

    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.

  • S.J. is sort of a publilc figure, so he really can't protect his image from becoming a product. Not anymore than the president of the US could. Anybody want an Obama bobble-head for their rear deck?

  • Good job advertising the figurine maker.

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