Notable manufacturer Ty (beanie babies) has introduced a line of Sasha and Malia dolls. 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? 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 interesting commentary as to why the merchandise is so popular, along with imagery of the range of products. 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. Statutory damages function as a deterrent and ensure 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 individuals who have 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.
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.