Presidential Right of Publicity
posted by Gerard Magliocca
There was an article yesterday about the company that sells the “Chia Obama,” which is like the “Chia Pet” that you slather with seeds and then water to make a boring ceramic figure look slightly less boring. (As I tell my intellectual property students, not all lucrative inventions are complex. Go ask the inventor of the pet rock.) The news was the Chia Obama was pulled from stores because the firm concluded that the product was inappropriate for its image.
This raises a broader question, which is to what extent, if at all, can the President control the use of his image for commercial purposes. Traditionally, politicians have operated on the assumption that there is no such thing as overexposure. Teddy Roosevelt was famous for delighting in the appearance of his likeness on all sorts of goods, culminating with the borrowing of his name for the teddy bear. Nevertheless, a spokesperson for the Obama Administration told Bloomberg News in February: “Our lawyers are working on developing a policy that will protect the presidential image while being careful not to squelch the overwhelming enthusiasm that the public has for the president.”
What are the President’s legal options? In the states that recognize a right of publicity, he should have plenty of protection unless a use raises a First Amendment defense. Courts have generally taken a broad view of what counts as a commercial use for purposes of publicity analysis, even when the expression was predominately political, which means that almost all uses of Obama’s name or likeness on products that are sold without his consent are suspect. On the other hand, publicity cases usually involve show business folks rather than elected officials, and the latter category probably merits different treatment. It is far from clear that a court would bar the National Rifle Association from selling a presidential bobblehead doll that depicts him holding a semi-automatic just because the sales make money for the NRA.
In the states where no right of publicity is recognized, the White House faces a tougher road. Perhaps the President could claim a common-law trademark and demonstrate commercial use through the souvenirs his campaign sold in 2007 and 2008. Whether he could maintain his interest in the mark while President, though, is less clear because it is hard to say that he is engaged in commerce in office. I do not know what, if any, registered marks the President might have, but this would eventually run into the same “abandonment” limitation. (A First Amendment defense, of course, would also apply even if Obama could claim trademark rights, plus a defendant could try and assert fair use.)
Perhaps the only thing the President can do is jawbone people when he doesn’t like the people profiting off of him. Or how about offering a tour of the Rose Garden (seeds and water included) to the Chia Obama executives in exchange for a cut of their proceeds?
April 6, 2009 at 8:29 am
Posted in: Intellectual Property, Politics, Privacy, Tort Law
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Responses (6)
C.T. - April 6, 2009 at 9:31 am
Interesting post. The clamor to utilize the Obama image is not limited to Barack. A toy company tried to cash in on the popularity of Sasha and Malia, much to the chagrin of Michelle. The company decided to rename the product after drawing ire from the Obamas.
http://news.bbc.co.uk/2/hi/americas/7868735.stm
While searching for a link to the doll story, I also came across this article, which discusses the fact that the commercial exploitation of Obama’s image is an issue that White House counsel is actively monitoring.
http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aY4JojiQVy4c
A.W. - April 6, 2009 at 9:57 am
I think the right answer is to say that Obama can’t really control this image. Tough on him, but good for the first amendment.
For instance, take the Pepsi ads overtly using an obamafied version of their logo and talking about how he will “refresh america.” Obviously there is politics at play, and obviously they are hoping to make money. but how can we in a free country limit that?
But you can bet that no bailed out company would dare do that–which um, should bother us about nationalizing everything.
JakeD - April 6, 2009 at 1:33 pm
Good points, A.W.
Jody Lynee Madeira - April 6, 2009 at 9:16 pm
Then, of course, there’s the new Obama Fried Chicken restaurants…
http://www.wpix.com/landing/?NYCs-Obama-Fried-Chicken-Eateries-Under-=1&blockID=258416&feedID=1404
A.W. - April 7, 2009 at 9:01 am
Jody,
And I always found food stereotypes to be such a weird thing. I remember reading Ellison’s “invisible man” and there was a part where the guy is eating yams with maple syrup on it and feeling what i call “stereotype panic” which is when a person gets anxiety over fitting a stereotype. And I, a white guy, am reading this going, “that sounds really good.” Two nights later, I gave it a try and it was GOOD. But there was a time apparently where this was considered “black food” and Ellison’s character both loved it and was ashamed that he loved it. Go figure.
And in other contexts we don’t get hung up about that sort of thing. I mean there is mexican food, italian food, chinese food and so on, but when it comes to acknowledging that black Americans have a slightly different culture from white Americans, and that some of that extends to choices of cuisine, everybody suddenly gets uptight. I mean we can even acknowledge that there is such a thing as southern cuisine v. northern cuisine (and often southern cuisine includes alot of so called “african american” foods like fried chicken and collard greens (sp?)). But suddenly on the racial thing it gets all uptight. I guess it was years of racist white people taking these ordinary cultural differences and turning it into something hateful, like somehow eating fried chicken implied something else about them. I guess I really, truly, don’t get it. Which is not totally a bad thing.
A.W. - April 7, 2009 at 10:30 am
Btw, if you follow my link, you have legal insurrection’s guide to Obama kitch, which might be a good thing if anyone plans to write a law review or something based on this issue.
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