When a Chinese company came out with a Steve Jobs doll a few weeks ago, we weren’t surprised to see Apple’s lawyers shut it down very quickly.

After all, the top estate planners we talked to had already warned us that Jobs had probably been very careful to assign control of his distinctive likeness when he knew that his cancer would end up killing him.

That control included archival footage and even the right to re-edit previous public appearances into “new” Apple product announcements or endorsements.

“Given his private nature and the tremendous value of his image, he almost certainly assigned his rights of publicity to his trust or some other corporate entity,” notes Bernie Vogel, CEO of Silicon Valley Law Group’s estate planning practice.

The Jobs family seems to have used that legal framework to apply “immense” pressure on Hong Kong toy maker In Icons, which was going to sell the dolls for $99 apiece.

And since Apple reportedly owns the right to sell commercial products that bear the names of employees, simply naming the doll after Jobs was asking for trouble.

Publicity, privacy get hazy after death

But estate planners may have a bit more trouble ensuring that their clients are similarly protected from posthumous “tributes” may not have it so easy.

In a majority of states, control over publicity ends at death, but there are exceptions.

Jobs’ home state of California voted in 1999 to extend the right to profit from a celebrity’s public image to 70 years after death — a provision designed to protect the estates of stars like Fred Astaire.

Before the people at In Icons gave in and canceled their doll, they argued that Jobs wasn’t a movie star, so they could do what they like.

That’s not quite true, the publicity gurus say. All you need to be covered is to be famous enough for your likeness to have commercial value when you were alive.

Jobs definitely qualified as this kind of “personality,” as the very existence of this doll demonstrates.

His appearances on Apple’s behalf, for example, made billions of dollars for the company’s shareholders, and an unauthorized product dilutes that personal brand.

Assigning that brand to his heirs is possible because he was a celebrity and there’s actually a material interest to pass on.

For most people — even high-net-worth clients — there may not be a brand to pass on. In that scenario, the estate wouldn’t even be able to fall back on rights of privacy, since the dead are currently not entitled to that.

That’s probably the most disturbing aspect of this.

If you’re not famous, the Hong Kong doll maker can do whatever it wants with your image.

The only thing holding them back is the lack of a profit motive.

Protect what can be protected

The Jobs case highlights the importance of spelling out the intangibles in a trust or other testamentary document.

Sure, a lot of estate planners are content to assign the real property and the liquid assets, especially if there aren’t any patents or literary assets.

But intellectual property adds up to a lot more than copyrights and patents that can be held in trust for future generations or sold to a corporate buyer.

Every one of your clients has correspondence to protect, photographic archives, diaries and notebooks.

Ordinarily, access to those more personal documents passes to the family, but why trust your clients’ wishes to posterity?

With Jobs, for example, the personal papers were almost certainly locked up, Silicon Valley lawyer Bernie Vogel tells me.

Otherwise, the action figures could only be the first wave of trouble for the notoriously media-shy technology guru.

“There are tell-all books, unauthorized movies to worry about,” Vogel explains. “Addressing the ultimate disposition of the raw materials and who gets access can make those projects more difficult and less likely to interfere with your client’s wishes.”

Vogel says he’s doing a lot more work with his clientele to get their intangible wishes on record.

Naturally, he’s in California, so they can benefit from that state’s posthumous publicity laws.

But even in states that don’t recognize these rights after death, the law can change, so it’s good to have a clear statement of your clients’ wishes on file.

New York, for example, has been pushing to protect its celebrities’ images for a few years now, while places like Indiana have enacted rules that prohibit anyone from making money off any dead citizen’s image for a full century.

Taking the struggle to the fans

If nothing else, an estate can use the statement to influence public opinion and show the world that a product is out of line with the wishes of the deceased.

The company that was making the Steve Jobs doll maintains that they “have not overstepped any legal boundaries” and could theoretically sell the toys tomorrow if they wanted to do so.

However, given the strong protest from the Jobs family — who know better than anyone what Steve would have wanted — it’s likely that diehard Apple fans would have stayed away anyway.

Scott Martin, senior editor, The Trust Advisor. Jerry Cooper and Steven Maimes contributed to the research.

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