Is It Legal For A Clothing Company To Show President Obama Wearing Its Jacket?

from the it's-accurate,-right? dept

One of the trickier and more recent "intellectual property" (and I use the term loosely) rights out there is the "right to publicity" which was an odd sort of invention designed as a way for certain famous people to stop companies from putting their pictures in ads and imply endorsement. But there are some fuzzy borders here, especially when it comes to First Amendment free speech rights. Paul Alan Levy has an excellent discussion on two separate cases where publicity rights came up with regards to President and Mrs. Obama. In the first, PETA used Michelle Obama in an advertisement, as an example of someone who doesn't wear fur. In the second, sporting goods company Weatherproof used a photo of Obama wearing one of the company's jackets while he was in China to highlight the sort of customer they have. Levy points out that the White House was upset and complained about both uses, but likely had no legal right to complain:
As in the Michele Obama case, the White House complained, but everybody seems to agree that Obama won't sue, not just because presidents don't trifle with such litigation, but because Obama has no legal leg to stand on. He is a public figure and the ad is truthful -- Obama did, in fact, wear its jacket standing near the Great Wall...

That is not to say that PETA and Weatherproof ran no risk when they started these ad campaigns. When receiving questions from reporters, the White House could have released statements from her denouncing PETA for extremist opposition to the use of animals in medical testing ("she thinks it is better to test on animals first instead of using poor people and prisoners"). Similarly, the White House could have told reporters, oh yes, he did wear the jacket but later decided that it is a cheap and inferior product. But instead, the White House seems to be playing along, at least with PETA, by agreeing that Obama really does share PETA's position on furs.
Where it gets even more interesting, is that Levy notes that a reporter for the Washington Post pointed to the similarities with various media publications writing up some story about the Obamas solely to get an Obama photo on the cover, knowing that it would sell well. However, oddly, the Post reporter seems to think this is just fine for the media, but a problem when it's someone else:
What is interesting here is the assumption that it is (mis)appropriation when a political group does it and when a clothing company does it, but not when the media do it. But isn't is obvious that magazines were putting the Obamas on the cover to sell magazines? Givhan's article admits that -- she says, "no small part of the allure has been the sort of personal magnetism that connects with consumers as they bide their time in checkout lanes," and quotes PETA's preseident explaining, "It's hard not to look at her and feel good."

This, too, is a use of the Obamas' selling power to sell the products of companies' who have never received consent from the Obamas. In fact, political groups and companies as well as the media are constantly trying to associate themselves with a variety of famous personages, no matter what some "right of publicity" cases may say. It is high time to consider how far the right of publicity needs to be cut back, or whether it causes more trouble than it is worth.
Indeed. The deeper you look at the right of publicity, the more ridiculous and less justifiable it seems. It almost always serves to stifle free speech.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    :Lobo Santo (profile), Jan 11th, 2010 @ 8:48am

    Obligatory Reference

    To the "Emperor's New Clothes" story...

     

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  2.  
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    Jeff (profile), Jan 11th, 2010 @ 8:59am

    Royal Warrants anyone?

    hmm... seems we might be going down a path here that we don't want to...

    http://en.wikipedia.org/wiki/Royal_Warrant

     

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  3.  
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    Anonymous Coward, Jan 11th, 2010 @ 9:17am

    "Is It Legal For A Clothing Company To Show President Obama Wearing Its Jacket?"

    As a matter of national security, no.

     

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  4.  
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    Richard (profile), Jan 11th, 2010 @ 9:19am

    Re: Royal Warrants anyone?

    Or how is it different from this page (picked at random by googling "customers include")

    http://www.quatech.com/about/customers.php

     

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  5.  
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    Richard (profile), Jan 11th, 2010 @ 9:23am

    Customers include..

    As noted above it's common practice to list existing major customers in promotional material.

    Unless the customer specifically requested to the contrary at the point of sale then it's fair game as far as I can see.

    Caveat Emptor!

     

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  6.  
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    Chuck Norris' Enemy (deceased) (profile), Jan 11th, 2010 @ 9:34am

    Fur Trader

    Well, what was that California King-sized, baby seal comforter I delivered to the White House last week for?

     

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  7.  
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    The Groove Tiger (profile), Jan 11th, 2010 @ 9:39am

    Re:

    The terrorists could use the information about what brand of jacket he uses to strike at the heart of America!

     

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  8.  
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    Comboman (profile), Jan 11th, 2010 @ 9:40am

    Re: Customers include..

    But that was a list of companies that were customers. If it was individual customers (which is what we are talking about with right-of-publicity), that would be quite different. For example, would you want to be included on a list of customers in a Viagra ad? How about an ad for Preparation-H? Unless you specifically requested to the contrary at the point of sale then it's fair game, right?

     

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  9.  
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    Anonymous Coward, Jan 11th, 2010 @ 9:47am

    soon, everything will be reversed, instead of the privates getting blotched out, now it will now be the cloths. I can see why this would be shocking to children, that is why it is now illegal for kids to watch tv. Hopefully, having a generation of kids without tv will stop stupid stuff like this.

     

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  10.  
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    John Doe, Jan 11th, 2010 @ 10:12am

    I thought both uses were awesome...

    I am no supporter of PETA and don't know anything about Weatherproof jackets, but their ploy worked. They not only got to use the President and First Lady as psuedo models, the press has given them huge coverage. They could not have paid for the kind of exposure they received. Both uses were brilliant. In the end, they can say, oops and remove the ad, but the exposure has already been made.

    As for the issue at hand, I don't see that either instance was a big deal. If they paid for the endorsement, that would be a problem. But to show the President chose your jacket on his own, without being a paid endorser, seems fair game to me.

     

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  11.  
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    Richard (profile), Jan 11th, 2010 @ 10:14am

    Re: Re: Customers include..

    "For example, would you want to be included on a list of customers in a Viagra ad? How about an ad for Preparation-H?
    Unless you specifically requested to the contrary at the point of sale then it's fair game, right?"

    Yes it is - but then if such a company listed its customers it soon wouldn't have any and I guess most customers would also realise this.

    Also there may not be a hard boundary between corporations and individuals.

    Eg Donald Trump, Richard Branson, Steve Jobs...

     

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  12.  
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    nunya_bidness, Jan 11th, 2010 @ 10:16am

    Why all the fuss?

    It's a crappy import jacket anyway. "The Weatherproof Garment Company has a history of sweatshop production, including having made jackets in Burma, which remains under military dictatorship. Currently it appears that most Weatherproof garments are made in China, Cambodia, Vietnam and Bangladesh." internet article

     

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  13.  
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    Bob V (profile), Jan 11th, 2010 @ 10:17am

    I don't care about the legality of it. What i find distasteful is the use of the President in an ad. I don't want to see the President of the United States used as a commercial figure. The ad was tasteful and there was nothing wrong with the ad itself other than the fact that the company has offended my sensibilities by using the President. Just because it is legal to do something doesn't mean you should.

     

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  14.  
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    Anonymous Coward, Jan 11th, 2010 @ 10:36am

    not so fast there hombre...


    im not sold that right of publicity is not exactly a bad thing here. and i still see a difference between the clothing line using obama and PETA using mrs obama.

    yes, it is a fact that he wore this jacket at the great wall. nice you sold it. and yes we all know you cant copyright facts... but even a moron in a hurry can tell that its an advertisement. even if they paid someone to write a long fact based article about how great their clothing line is its still just an ad (an annoyingly long one at that point, but still an ad).

    PETA is more of a political organization. they may be nuttier than a payday in a planters peanut factory, but their goal is not to make money based on the use of mrs obama's (or any other kook that publicly avows their principals) image. they are pointing at a public figure and saying "this person does not wear fur and we support that idea.... this person does wear fur and we think they should burn in hell forever and ever, ramen. and we shall now pass out the koolaid and tinfoil hats".

    now, in the first case, the person involved should have the right to say that they are not going to be a part of that ad campaign and that the company should stop using that image immediately since it is blatantly an advertisement and realistically anyone should have the right to say no to being involved in that for whatever reason they might have.

    in the latter, the closer you get to being a political organization (no matter how filled with whackjobs it might be) the more you can rely on the first amendment to pull off something like this. especially when the politicized goal of your organization is to bring about social change (in this case the idea that cows and minks are somehow higher on the food chain than homo sapiens).

    they may not sound all that much different, but in reality the two situations are worlds apart.
    and the idea that right of publicity is not justifiable is just flat wrong. anyone be they a well known public figure or just some schmo on the corner should be able to say I do not want to be associated with this and I do not give you permission to make me be associated with it against my will.

    and the final and yet most misunderstood part... there is no such thing as absolute freedom of speech. you cant yell fire in a crowded theater, liable and slander are still illegal and I only have the rights to post my thoughts on this particular forum because someone lets me. but i have no legal standing to force this site to allow me to post based on free speech since it is a privately held server and company and its main goal is (supposedly) not political in nature. these are all situations where my freedom of speech can be impeded. and last i looked, free speech didnt really cover the right to advertise however the hell you want... especially when it runs head first into issues in which freedom of speech is actually limited (e.g. a companies right to advertise how they like versus my right to not be used by that company without any input, say in the matter or any other controls").


    /wall o' text.

     

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  15.  
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    harbingerofdoom (profile), Jan 11th, 2010 @ 10:38am

    Re:

    bah.. i hate it when i dont sign in before posting....

     

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  16.  
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    Anonymous Coward, Jan 11th, 2010 @ 10:56am

    I find it strange that obama is able to dress himself, much less remember what he has or hasn't worn, guess his staff may have told him.

     

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  17.  
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    Marcus Carab (profile), Jan 11th, 2010 @ 10:58am

    Re: I thought both uses were awesome...

    PETA is good at that. Keep in mind this is the same group that sent a complaint to Obama after he swatted a fly on television, and received ridiculous amounts of media coverage for it.

     

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  18.  
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    Marcus Carab (profile), Jan 11th, 2010 @ 10:59am

    "she thinks it is better to test on animals first instead of using poor people and prisoners"

    I do hope that's in jest... I dislike PETA's methods and over-the-top stance as much as the next rational human being, but that is an extremely weak argument against animal testing, and there are quite a few reasonable ones.

     

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  19.  
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    Anonymous Coward, Jan 11th, 2010 @ 11:30am

    Are those pictures of Mike's mom wearing only President Obama's jacket legal?

     

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  20.  
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    President Obama, Jan 11th, 2010 @ 11:46am

    Re:

    Bob, get a life.

     

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  21.  
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    Facts be Damned, Jan 11th, 2010 @ 11:53am

    Re:

    So a company improves their standing with the public by pointing out the President wears their clothing and you somehow find that offensive.

    You analogies are also weak at best. The reason you can't yell fire in a crowded movie theater is that someone can get hurt. Liable and slander are not liable and slander if you are telling the truth, much like saying Obama wears our clothing which was true.

    You, or at least your perspective, is part of the problem with America today.

     

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  22.  
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    The Anti-Mike (profile), Jan 11th, 2010 @ 12:04pm

    Mike, how would you feel is someone got a picture of you at one of your events next to a Warner Brothers sign, or what have you, and someone used it in a billboard saying "Mike Masnick may put down the record labels on his blog, but in real life he is actually a talent scout on the payroll, and has been for years".

    Would that be any more acceptable?

    Should anyone be allowed to use your image in any way they like to suggest (right or wrong) that you support their products, their causes, or their ideals?

    In the end, both of those advertisements are wrong, PETA needs to get itself slapped hard for this one, and the coat company should get at least a finger wagging. In the end, they got what they wanted, international publicity.

     

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  23.  
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    Marcus Carab (profile), Jan 11th, 2010 @ 12:28pm

    Re:

    And yet the news/related media is free to use these photos and say the same things if they choose. If a fashion magazine wanted to examine the Obama's fashion choices they could run photos of the president in various places and point out what brands he was wearing, or comment on the lack of fur in the first lady's wardrobe - and all of this would be for the purpose of selling magazines.

    It may seem more distasteful for a company to do the same thing in a more directly commercial way, but as long as they don't state any endorsement beyond the implied ones that come from a photo of Obama wearing their jacket or the first lady avoiding fur (both simple facts), I can't imagine any reasonable (or desirable) law that would prevent this.

     

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  24.  
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    Marcus Carab (profile), Jan 11th, 2010 @ 12:29pm

    Re:

    (oh and all your other hyperbole about telling outright lies about people by using out-of-context photos is really just stupid, so let's not talk any more about that, shal we?)

     

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  25.  
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    Anonymous Coward, Jan 11th, 2010 @ 12:37pm

    Re:

    That's a bit of an apple-to-orange comparison, isn't it? If the billboard would have said "Obama endorses our coats and hates our competition." then that would be lie (which I'm pretty sure is illegal). Your statement would be a better comparison is you had said a picture of him next to a Warner Brothers sign with the tag "Mike Masnick enjoys quality entertainment." (which I assume to be true) thus inferring that he promotes WB. I mean if you're trying to incite some moral panic then why not just say him in front of a building with the tag "Mike Masnick kills puppys in this building!!!"?

     

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  26.  
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    nasch (profile), Jan 11th, 2010 @ 1:28pm

    Re: Re: Customers include..

    It depends how they know you're a customer. If they inappropriately (fraudulently? illegally?) got your credit card information from a vendor, then that is a problem. If you gave them your name and didn't stipulate how they would use it, well, that is your problem then.

     

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  27.  
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    The Anti-Mike (profile), Jan 11th, 2010 @ 2:40pm

    Re: Re:

    The difference would be that the media is trying to "inform", where a billboard in Times Square at New Years (how nice!) is trying to sell something.

    The numbskulls at PeTa are the same: they are trying to sell something, although it is an agenda rather than an actual piece of clothing (although I suspect they sell lottttttttts of t-shirts). It comes to the same thing: Associating someone with your product for gain, financial or political.

    Both of them are tasteless, and unlicensed use of someone's image (not photo, image or likeness).

     

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  28.  
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    Anonymous Coward, Jan 11th, 2010 @ 4:53pm

    Re: Re: Re:

    And when the media puts Obama on the front cover to sell papers or get ratings? What then?

    Since it's clear you didn't read the article, here's a quick instruction for you: RTFA.

     

    reply to this | link to this | view in thread ]

  29.  
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    The Anti-Mike (profile), Jan 11th, 2010 @ 7:27pm

    Re: Re: Re: Re:

    Once again, you fail.

    Your attempts to bait are horrible, your bait is stinky.

     

    reply to this | link to this | view in thread ]

  30.  
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    nasch (profile), Jan 11th, 2010 @ 8:23pm

    Re:

    my right to not be used by that company without any input, say in the matter or any other controls

    Where exactly is that right guaranteed?

     

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  31.  
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    Andrew F (profile), Jan 11th, 2010 @ 11:41pm

    Re:

    You can probably handle this with some sort of fraud or consumer protection program. Rather than create some vague "right to publicity," just ask "are people going to get confused by this?".

     

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  32.  
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    known coward, Jan 12th, 2010 @ 6:45am

    while i get that it is not illegal

    for them to use a news photo in an advertisement. I sure hope they get audited.


    Granted Maxwell house used "delicious, good to the last drop" (extra credit for who seaid it), but they got permission to do so.

     

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  33.  
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    Marcus Carab (profile), Jan 12th, 2010 @ 7:27am

    Re: Re: Re:

    And what of the fashion magazines I mentioned. Or what about celebrity gossip rags for which two inches of cellulite on some starlet's thighs is a cover story? Is that tasteful? In fact, ads like these are far LESS misleading than the shock-value half-true headlines that grace the checkout aisles.

    If it's not lying, falsely implying endorsement, or violating anyone's legal right to privacy, I don't see how you could reasonably stop that behaviour without creating a) a big legal slippery slope or b) a law with so many conditions and caveats that it is a nightmare

     

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  34.  
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    Anonymous Coward, Feb 7th, 2010 @ 8:20pm

    I think it shouldn't be too hard to convey the idea "these famous people don't wear fur" or "here are some candid photo(s) of celebrity(s) wearing our jackets" without an implication of endorsement. As such, I don't see any free-speech problem in the publicity rights.

    I don't know much about the relevant laws, but it seems to me that if a "moron in a hurry" seeing the ad would think that the person in question was involved in endorsing the product in question, then that's not okay.

    I think the PETA ad and the jacket ad both clearly cross this line (especially with the photoshopping); these ads really seem to suggest that the Obamas are posing for the ads (implying endorsement) rather than that the company just wants to point out the fact that the Obamas happen to not wear fur or use their products.

    (To be clear, this definitely isn't a copyright issue we're talking about here: the copyright to the Obama photo is owned by Associated Press, which licensed it legally to the company in question.)

    As for photoshopping, I think clearly people should be able to photoshop official (public domain) White House photos as long as they do so in a way that doesn't violate libel laws (e.g. photoshop something to make it seem like Obama is making out with an intern), publicity rights (e.g. these ads), etc.

     

    reply to this | link to this | view in thread ]


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