The Complicated Legal Problems concerning the Likeness of Jobs

Could the deceased’s right of likeness be protected in China?

Our website has posted the article How to Combat the Infringing Steven Jobs Doll in Chinese Market, introducing the Chinese laws and regulations regarding the infringement of right of likeness according to this event. Later, we read an American legal professional’s comment, Apple Won’t be Able to Stop Steve Jobs Action Figure from Going on Sale in Most States, saying Apple’s legal claim is largely bogus. While people can indeed own rights to their likeness, those rights usually apply only to living people. Unlike other forms of intellectual property like patents or copyrights, image rights do not survive beyond the grave in most places.

Accordingly, although most states in U.S.A won’t acknowledge the legal protection on the deceased’s right of likeness, there’re much differences between Chinese laws and U.S.A laws. Today, Bridge IP Law Commentary will introduce the relevant Chinese laws and regulations regarding the legal protection of the deceased’s right of likeness.

Question I:  Whether a natural person can enjoy right of likeness after he/she dies?
China is a civil law country with the same regulations about the personal rights such as the right of likeness as those of other countries. According to the Article 9 of the General Principle of the Civil Law of the People’s Republic of China (“GPCL”), a citizen shall enjoy personal right from birth to death, meaning a natural person shall not enjoy right of likeness after he/she dies.
What behavior constitutes infringement of right of likeness?

Question II: Whether the likeness of a dead man is protected by law?
Although in China a natural person isn’t acknowledged to enjoy personal rights after the death, in practice the likeness of the dead is legally protected. The Article 3 of the Interpretation of the Supreme People’s Court on Certain Issues concerning Determination of Liability for Compensation for Spiritual Damage Arising from Civil Torts (the “Interpretation”) definitely regulates that when a close relative of a deceased natural person files an action with a people’s court claiming compensation for mental distress due to any of the following acts of infringement, the people’s court shall accept the action in accordance with the law:(1) infringement of the name, image, reputation, or honor of the deceased by insulting, libeling, disparaging, vilifying, or by any other means contrary to the social public interests or social morality; (2) infringement of the privacy of the deceased person by illegal disclosure or use of the privacy of the deceased person or any other means contrary to the social public interests or social morality; and (3) infringement of the remains of the deceased person by illegal use of or damage to the remains of the deceased person or any other means contrary to the social public interests or social morality.

Question III: Whether the use of the likeness of a dead for profits constitutes the infringement?
It is rather an interesting issue, according to the logic described above, only the use of likeness of the dead by insulting, libeling, disparaging, vilifying etc. can be regarded as infringements, therefore the use of likeness of a dead isn’t an infringement, of which, however, the logic is implicit but not ostensive. Thus the practice in China is very complicated, as the cases we have researched, showing the acknowledgments of most people’s courts in China are largely different and only a little people’s courts obey the legislative logic mentioned above. Most courts in China holds that the use of the deceased’s likeness is kind of violation against his/her relative’s interests, while others belive this could be the unjust enrichment. Furthermore, we also find the essay by the judge from the Supreme People’s Court and the High People’s Court of Yunnan Province arguing that the use of the likeness could damage the interest of the relatives.

Question IV: Shall the legal issues concerning the likeness of Jobs be applied China laws or American laws?
It’s actually a problem on the international private law, namely the governing law of Jobs’ personal right shall be the legislation in China or U.S.A. By the provision of China laws and regulations, in hearing the cases involving the personal right of foreigners, it shall first fix the governing law for the determination on the effect of the personal right. Once the governing law is chosen for those states’ in America not supporting the protection on the likeness of the deceased, the right owner is more likely to lose the lawsuit, while in case China laws or the laws of those states supporting the protection on the portrait of the dead man in U.S.A. are applied, the right owner is probably to win the litigation.

Nevertheless, the choice of the applicable law is not quite certain itself. There are two articles related in the Regulations on the Law Application in Hearing the Cases with Foreign Elements Involved (the “Regulation”). By Article 44 of the Regulation, for the determination of the infringement liability, the laws of the place where the infringement occurred shall be applied. And it’s regulated in Article 46 that the law in the place of the residence of the infringed party shall govern when the right of name, likeness, reputation and privacy is infringed through internet or other ways. Therefore, for the lawsuit filed by the right owner against the infringement by the manufacturer of Jobs action figure or the retailer offline, the China laws shall be applied. And when the right owner sues the cyber sales of the infringing product on China courts, the laws of the residence of Jobs in U.S.A shall govern.

After all, Bridge IP Law Commentary thinks it remains a complicated legal problem to determine whether selling the Jobs action figure with no permission from his relative could be infringement, and once they or Apple chooses to charge the infringer in China, it could be an energy–exhausting task for their attorneys to figure out the theoretical problems.

For the last analysis on the issue, please click here.

Other posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to improve the success rate of trademark registration in China?
3. The Copyright Registration in China Could Be FREE?
4. China Copyright Protection Term Longer than EU’s?
5. Matters for Attention in the Patent Preliminary Injunction Application in China(I)

Author: Ms. Chen Danhong
Attorney-at-law of DeBund Law Offices
Co-author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email: Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
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Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works. And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.


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