Notable manufacturer Ty (beanie babies) has introduced a line of Sasha and Malia dolls. 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
The wave of President Obama merchandise seems to be cresting as the inauguration draws near. This article from CNN http://www.cnn.com/2009/POLITICS/01/18/obama.cool/index.html presents some intersting commentary as to why the merchandise is so popular, along with imagery of the range of products–enough to parallel the licensing campaigns of legends like James Dean! Unfortunately, no where in the article does the question of whether these products are legal is even addressed. Now, I wouldn’t expect the issue to be resolved in such an article, nor could it be since there is so much gray area surrounding the commercial use of a political figure. But the issue is at least worth an honorable mention. In the photograph, I spy a product that uses the “I♥ Obama” product. Many people tend to be surprised that the “I♥__” phrase is a registered trademark of the New York State Department of Economic Development (I♥NY), and is the centerpiece of a vibrant licensing program of its own. I won’t analyze here whether that particular product in the CNN article constitutes an infringement of the NY trademark as well, but it wouldn’t be the first time infringing merchandise steps on the toes of multiple intellectual property owners at the same time.
Many Right of Publicity statutes provide for “statutory damages” in the event of violation of the statute. Typically, these statutory damages are available in lieu of actual damages, for those situations where actual damages may not be capable of being measured or demonstrated. In Indiana, under 32-36-1-10 (1)(a), the statutory damages amount is $1,000, or actual damages, whichever is greater (and separately, treble or punitive damages, as well as attorney’s fees and expenses, under 32-36-1-12(1) of the Indiana Code). It is important to be aware that statutory damages do not provide a reliable means for measuring what an otherwise valid Right of Publicity claim may be worth. Rather, statutory damages exist to establish a floor that an infringer must pay for violating any person’s Right of Publicity, regardless of the extent of the infringement or whose publicity rights are involved. I believe these statutory damages function as a deterrent to infringement, and serve to ensure that those who might find themselves infringed, but with no other way of establishing their market value, will not be without a remedy of some kind. Such statutory damages generally do not exist for famous individuals who enjoy a vibrant business surrounding the use of his or her name, image or likeness. An infringement upon such personalities, whether living or deceased, typically will not be measured accurately based on the statutory damages provided by the relevant Right of Publicity law. In this way, committing a Right of Publicity infringement can become a very expensive proposition.
I was recently posed the question from a visitor to the site regarding a deceased actor who portrayed a famous comic book character in a TV series drama, among other acting roles. My answer:
While I can’t give legal advice in this forum, I can certainly give you some input. The issues raised by this question have been the subject of cases such as the Lugosi case (Bela Lugosi as Dracula) and the Wendt case (Norm and Cliff from Cheers, who sued for the use of animatronic robots in a Cheers theme restaurant which played lines from the actual show). You’re right, any products concerning the actor in character as the comic book figure would require a license from the studio or owner of the character (i.e. Spiderman/Marvel). In that instance, it is possible that the studio will have contractually secured the rights from the actor to engage in certain licensing. If the product is based only on the actor himself or perhap some of his less famous portrayals, there would still be an issue with respect to his Right of Publicity if you want to engage in merchandising. Since he was married, all things being equal, his wife probably owns his Right of Publicity unless he transferred it to some other person or entity (like through a will, or during his lifetime). The Right of Publicity is a property right so this allows any variety of transfers to take place. As such, clearance or a license from whomever owns his RoP would be necessary.
I recently was posed this question by a visitor to the site: “Some time ago, I took pictures of several rock stars in concert. I was back stage and had close access. Can I exhibit these images in an art gallery show? Can I sell the images?”
My answer (aside from the obligatory “I can’t give legal advice in this forum”): This is one I hear often. Since you took the photographs, the law (under copyright) would entitle you to certain rights and activities with respect to those photos. The challenge is to make sure the activities do not go beyond what copyright allows and into the realm where other rights, like Right of Publicity or trademark, are also implicated. If you took your photos and applied them to t-shirts or posters, you’d need a license from the personalities in the photo. But if you were merely displaying your photos at an art gallery show, you would probably be within the boundaries of the law. Selling reprints is a bit trickier but is arguably permissible under most RoP statutes. But here too, where people tend to cross the line is by taking one of the photos and making that photo part of the logo for their photography business, or using the images in advertising for the entire gallery, the show, or his or her photographic services. Hopefully it is evident how such use of the photos would trigger the other rights of the personality such as trademark or Right of Publicity.
With the 50th anniversary of Buddy Holly’s untimely passing right around the corner, there has been a considerable amount of activity and interest in Buddy Holly. A recent article in the Lubbock Avalanche-Journal (see http://www.lubbockonline.com/stories/010909/loc_375424907.shtml ) reports on the progress that is being made to re-introduce a variety of initiatives commemorating Buddy in his hometown of Lubbock, Texas. There’s a bit of history between the City and Buddy’s widow, Maria Elena Holly, but it appears likely that things are getting resolved and a fitting tribute will be possible. Part of that history has to do with considerable misunderstanding of Right of Publicity and related intellectual property laws concerning deceased celebrities. No home town has a blanket right to engage in commercial uses of a notable individual just because he or she was born there. The law is quite clear in terms of ownership of these intellectual property rights, and I suspect the same scrutiny and criticism (of the past) would not have been levied against, say, Priscilla Presley, although her approach likely would have been quite similar. In any event, it looks like a bridge is being built between all the parties, and that is probably a good thing for everyone.
One thing I have been asked a lot about is whether all the merchandise popping up featuring President Obama’s image constitutes a Right of Publicity infringement. In fact, on a recent trip to a local grocery store, I noticed a rack of t-shirts on sale featuring President Obama’s image. Some major licensing properties can’t even get that kind of real estate in the distribution channel! Public officials do have an enforceable Right of Publicity, but they probably face heightened challenges from a First Amendment perspective, as well as from a public relations perspective.
I’ve often talked about this in my Right of Publicity class. The fact that a President is being featured on commercial products is nothing new. Sometimes the products are respectful, sometimes mocking (parody?). But let’s not lose sight of the very clear profit motive that is behind a vast majority of the products out there. The key is probably to focus more on the “commercial use” aspect of the product to determine if the use is somehow defensible or is an outright Right of Publicity infringement.
But as a practical matter, taking action against such products presents too big of a public relations issue for an elected official to go after such uses. President Obama, for example, would be risking a lot of public criticism or scrutiny if he had his lawyers start sending cease and desist letters. (I’m reminded of the backlash to Metallica’s pursuit of Napster downloaders–very different situation but the result is at least similar).
Sometimes, once the elected official is out of office, a renewed attention to policing and protecting against unauthorized uses will emerge. From my work representing former Presidents, or collaborating with their advisors, I can attest that there is still a more reserved approach than a typical celebrity might take.
But the short answer is that yes, public officials do possess an enforceable Right of Publicity.