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Sasha and Malia dolls: Now it’s not just the President being infringed

January 25, 2009 8 Comments »
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Notable manufacturer Ty (beanie babies) has introduced a line of Sasha and Malia dolls, so the topic I have written about concerning President Obama infringements has moved to his children.  No doubt these products will sell, but several questions emerge:  Is it appropriate for a company to offer products based on the Presidents’ young children?  Is it legal?  I’ll let Ty, or the public at large answer the former.  As for the latter, I have already noted that even elected officials possess a right of publicity, albeit perhaps subject to heightened First Amendment and political speech defenses.  Do those defenses apply to Ty here?  I wouldn’t bet on it.  But in the end, public relations issues may be the true “defense” because going after these products as an infringement would no doubt cause more interest in the product and trigger a fair amount of scrutiny and criticism.  Here’s the link to the story with pictures of the products: http://www.patentlyo.com/patent/2009/01/sasha-and-malia-dolls-legal-remedies-for-the-obamas.html?cid=146130850#comments

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8 thoughts on “Sasha and Malia dolls: Now it’s not just the President being infringed

  1. You raise an interesting point but the young ladies are now public figures. And as you are keenly aware………..we do not yet have a national Right of Publicity. However, I would think this goes clearly beyond mere advertising and is way down the marketing, profit-making highway. To be quite honest, I don’t think the dolls look like the girls sufficiently to be causing such a stir. It’s the names more than the likenesses.

  2. Peter Blackett says:

    While there is not a national right of publicity, the dolls will likely be sold nationwide including in many states that have right of publicity statutes. Right of publicity statutes are looking for identifiability. In order to establish identifiability a court can look at context. What you have are two dolls that somewhat look at President Obama’s daughters, and who have the names Sasha and Malia. Those are two unique names. The court can also hear about how Ty came up with the concept and the names for the dolls. It would be interesting to hear that explanation.

  3. Ngandu Kasuku says:

    Echoing Peter’s sentiments, the context under which these dolls have been offered for sale may rise to the level of identifiability. Dolls of either different names or ethnicity may be a closer call. Further, the issue of whether the Obama girls are public figures is debatable. Although their parents clearly are, it is unclear whether the children of public figures, without consent or encouragement from their parents can be public figures.

  4. C. Sabatine says:

    The first comment above seems to imply that because only the names of the dolls expressly bear a resemblance to the first daughters, more so than the actual physical appearance of the dolls, the similarities may be insufficient to qualify as use of likeness. An argument can be made that use of the names alone in the context of the circumstances, wholly qualify as use of “likeness”. Several state statutes uphold that use of the name of a person for a commercial purpose is a violation of a right of publicity. The names Sasha and Malia, even while not accompanied by “Obama” are easily identifiable with the first daughters. The President routinely introduced and paraded his daughters to the world during his campaign that only recently concluded. It is reasonable and probable the mention of Sasha and Malia, would suggest the first daughters. Here, the names were assigned to two dolls entered into the marketplace during the same month as the presidential inauguration. Considering the circumstances, the use of the names alone would likely demonstrate adequate use of likeness for commercial purposes.

  5. Kyle LeClere says:

    One argument that could be made by Ty, which I don’t think has been made above, is that the dolls were an artistic expression. Granted this argument would not likely come into play unless Ty conceded that the dolls were identifiable as Sasha and Malia. But after conceding this point they could argue that the dolls were made as a tribute to the first daughters and are pieces of art. However, after the precedent of MLK v. American Heritage, this argument is not likely a strong one.

  6. Christine Reynolds says:

    I want to address two of the things mentioned above.

    1) C. Sabatine said, “The President routinely introduced and paraded his daughters to the world during his campaign that only recently concluded. It is reasonable and probable the mention of Sasha and Malia, would suggest the first daughters. Here, the names were assigned to two dolls entered into the marketplace during the same month as the presidential inauguration. Considering the circumstances, the use of the names alone would likely demonstrate adequate use of likeness for commercial purposes.” I think this statement is too conclusive. If the dolls had more physical characteristics, I think that would be an easier call to make. The fact is that because of Obama’s “celebrity” status, there will probably be many children named Barack, Michelle, Sasha and Malia in the coming years. Ty is keeping up with the times focusing on newly popular names, not necessarily newly popular people.

    2) I agree with Ngandu Kasuku that the status of Sasha and Malia as public figures is also debatable. Just being someone’s child could probably make you a public figure in some instances, but I don’t think that is enough in some cases to require the same treatment that would be given to the real public figure, the person’s parent.

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