With Donald Trump recently announcing that he would not run for President in 2012, I thought about a popular topic concerning the right of publicity of public figures and politicians. This topic (as well as this website) was recently discussed on a t-shirt website forum (http://www.t-shirtforums.com/general-t-shirt-selling-discussion/t153365.html#post913652) so I thought I’d elaborate somewhat on this topic.
Donald Trump is no stranger to the intellectual property rights surrounding his name, image, persona and identity. He has registered trademarks on various aspects of his identity, and enjoys a vibrant licensing program ranging from Trump’s Signature Collection of clothing (suits, ties, cuff links, eyewear http://www.trump.com/Merchandise/Signature_Collection.asp) to Trump steaks (http://www.trumpsteaks.com/). If Trump were to run for President (which I suppose he already has, to some degree), would he be forfeiting his right of publicity, and therefore his ability to prevent unauthorized, unlicensed products entering the marketplace?
In short, no. But it does get a bit more complicated for public officials to pursue unauthorized merchandise and advertising campaigns, even if they would have a legal right to do so. Through my work on behalf of many public figures, ranging from Princess Diana and Rosa Parks to Jackie Robinson and General Patton, as well as a couple of former U.S. Presidents, I know that a certain amount of such activity has been tolerated. President Obama seems to have responded to such activity more than any other President, perhaps also because he (or his family) has been used more than any other recent President. Here is a news item concerning a casino billboard campaign with a President Obama lookalike: http://southerngaming.com/?p=2562
Perhaps it is worth distinguishing between a person’s right of privacy and the right of publicity. We are all generally familiar with the idea that when a person runs for public office, he or she gives up a certain degree of an expectation of privacy. A corollary to this is the New York Times v. Sullivan “actual malice” standard for defamation of public figures. This case instructs that because the famous person sought out elected office and has better access and means to the press in order to combat any inaccurate or potentially defamatory information, the standard for committing defamation is necessarily higher than that for private citizens. Here’s a Wikipedia link to the New York Times v. Sullivan case: http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan
This “actual malice” standard for elected officials is part of the mechanism for ensuring broad First Amendment privileges, and encouraging differing views, discourse and criticism of our public officials. None of this means that those elected officials have simultaneously consented to becoming product lines or being featured in advertising campaigns for all manner of goods and services. It may be that such products or advertising campaigns have an element of parody, which conceivably could serve as a defense to a right of publicity claim. But most such products or advertising campaigns are simply an effort to sell more products or to promote a company’s goods or services. This, then, is likely nothing more than commercial speech. If the message is simply “buy our stuff” or “shop at our store,” and the inclusion of the public figure is nothing more than a scheme to attract attention, then the right of publicity can and generally will provide recourse for that public official.
In many instances, pursuing a company who engages in what might constitute a right of publicity infringement may become more of a public relations issue than a legal issue. Going after the company may give that company substantially more media attention, and may be portrayed in the press as that public figure trying to chase down infringers in order to make money. It’s a bit of a dilemma for those who find themselves in such a position.
I didn’t realize how much attention this topic has been given on this website until I looked back at prior entries:
First Lady Michelle Obama and PETA ads: http://rightofpublicity.com/peta-launches-new-ad-featuring-michelle-obama-without-first-ladys-permission
President Barack Obama bobbleheads: Intentionally unflattering? http://rightofpublicity.com/bobbleheads-intentionally-unflattering-or-a-symptom-of-the-product-category
The First Daughters: Sasha and Malia Ty beanie baby dolls: http://rightofpublicity.com/sasha-and-malia-dolls-now-its-not-just-the-president-being-infringed
President Obama merchandise continues: http://rightofpublicity.com/president-obama-merchandise-continues
President Obama infringements? http://rightofpublicity.com/president-obama-infringements