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.