Presidential bids, Donald Trump, and the Right of Publicity for public figures

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:

Obama Got Osama:   http://rightofpublicity.com/obama-got-osama-products-hit-marketplace-reports-usa-today-anyone-want-to-take-a-shot-at-that-right-of-publicity-analysis

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

Hangover II, Mike Tyson, and copyright claims in a tattoo design

Interesting case of the tattoo artist asserting a copyright claim for the appearance of his infamous Mike Tyson-face tattoo appearing in Hangover II.  It raises a slew of interesting intellectual property questions that I’m not going to research or try to answer definitively here.  But in short, I see a number of problems with the tattoo artist’s position. 

I understand that no objection was made to the appearance of the tattoo in the first Hangover movie.  Perhaps that is because only Mike Tyson appeared in the first Hangover movie, whereas in Hangover II, in addition to Mike Tyson appearing again, actor Ed Helms’ character gets a similar, or perhaps identical tattoo on his face. 

Maybe the argument from a copyright claimant in these circumstances is that the inclusion of his tattoo constitutes an unauthorized display in violation of his exclusive section 106 rights under the Copyright code.  Similarly, perhaps the tattoo on Ed Helms’ character constitutes an unauthorized derivative work, or an unauthorized copying.

If the activities complained of in Hangover II are copyright violations, then the appearance of the tattoo in the first Hangover movie must also have been a violation.  The tattoo artist could hardly object to Mike Tyson appearing in a film, and by virtue of the tattoo appearing on Tyson’s face, well, the tattoo is going to appear as well.  At this point, there could be a viable estoppel defense to the assertion of the claim now, years after the first Hangover movie.

The notion of intellectual property in tattoo designs raises some novel questions.  It is certainly possible to construct a scenario where a copyright, or trademark interests, can be manifest in a tattoo.  If a person gets a Harley-Davidson logo tattoo, it is of a trademarked logo.  If a person gets the lyrics to a song as a tattoo, it certainly could be of a copyrighted work.  But what of a relatively simple configuration of angular lines, like the Tyson tattoo?  Is that even an original work of authorship?  Maybe.  But who owns the copyright in the tattoo design?  Might it be considered a work made for hire, vesting the rights in the recipient of the tattoo on whose skin it appears? 

Or, perhaps there is an implied license allowing the recipient of the tattoo to display the tattoo publicly.  Certainly, when taking the conspicuous step of tattooing a person’s face, the tattoo artist cannot simultaneously expect to enforce the exclusive rights of a copyright owner concerning the right to display, reproduce or even perform the work.  Can the tattoo artist/copyright owner then only selectively enforce his copyright?  Doesn’t this lead to the scenario that anyone who takes Mike Tyson’s picture is committing copyright infringement by making an unauthorized copy of the work, or perhaps even a derivative work?  Displaying the image, then, as in the news, leads to the same result.    

Since the tattoo is part of Mike Tyson’s skin and face, then when Tyson is acting and his face is engaging in expressions, delivery of dialogue, and such, can it be argued that the tattoo is engaging in a “performance?”  Remote, but then so is this whole topic.  I also credit another legal commentator for pointing out that human organs generally are not subject to intellectual property ownership.  The skin is an organ.  While the tattoo and ink are not organs, once permanently embedded in the skin, they would seem to be part of that organ.  I’ll let you take a shot at piecing an argument together based on that interesting line of thought.

To the extent that the tattoo artist could construct a copyright claim in response to at least certain activities, it seems clear to me that this particular form of intellectual property would also be subject to considerable fair use exceptions.  Some of the above points exemplify why.

Just to further complicate things, I’ll mention that the tattoo is so closely and unequivocally associated with Mike Tyson that the tattoo might actually raise potential Right of Publicity considerations.  Those issues don’t exist in the Hangover matter because Tyson obviously consented to appear in the film.  But hypothetically, I can envision a scenario where that tattoo design on a person’s face, let’s say appearing in an advertisement of some kind, could constitute a violation of Mike Tyson’s Right of Publicity.  In this regard, the claim might be even stronger than the copyright claim concerning Hangover II.

Here’s a link to more on the Hangover II tattoo copyright dispute: 

http://today.msnbc.msn.com/id/43138242

Disney seeks to trademark SEAL Team 6, the elite special forces unit that tracked down Osama bin Laden

Just two days after President Obama announced that Osama bin Laden had been tracked down and killed in Pakistan, Disney applied for the trademark “SEAL Team 6” with the United States Trademark Office.  See http://tess2.uspto.gov/bin/showfield?f=doc&state=4001:frbhm5.2.3   Disney isn’t the only one with a pending trademark on SEAL Team 6 though.  See  http://tess2.uspto.gov/bin/showfield?f=doc&state=4001:frbhm5.2.1 and http://tess2.uspto.gov/bin/showfield?f=doc&state=4001:frbhm5.2.2 which also are trademark applications by third parties for SEAL Team 6.

Disney is reportedly developing a production based on the story of the elite special forces team that tracked down and killed Osama bin Laden, so no doubt this was their objective in seeking to trademark this name.  The article at the following link makes a good point that GI Joe was once a military reference before it became trademarked and turned into a TV and toy brand:  http://eonline.mobi/answer_bitch_detail.ftl?id=b242656&last_page=4&paginate=0.  Another article, from the Christian Science Monitor, reports that a behind-the-scenes resolution between Disney and the Navy may be a likely outcome of this trademark application.  See http://www.csmonitor.com/Business/2011/0519/Who-owns-SEAL-Team-6

All of this raises an intriguing question:  are there any right of publicity interests in the individual members of that SEAL Team 6?  Interesting in part because those persons will likely remain unidentified for a host of reasons.  What about the notion that certain aspects of the military are either the exclusive jurisdiction of the Federal government (like the Presidential seal), or essentially public domain (like the State of the Union address or judicial opinions)? 

It will be interesting to see how the Examining Attorney assigned to Disney’s application handles this file.

Brando Enterprises, owner of Marlon Brando’s rights, sues Harley Davidson over “Brando” boots

Brando Enterprises, the entity that owns and administers Marlon Brando’s Right of Publicity and other intellectual property interests, has filed a lawsuit against Harley Davidson as reported by Forbes.com and various other sources.  The suit centers on Harley Davidson’s offering of a line of boots reportedly entitled “Brando” boots. 

The suit, filed in Los Angeles County  Superior Court, notes that Harley Davidson’s product resembles boots worn by Marlon Brando in his film “The Wild One,” released in 1953.  It is not clear at this stage whether Harley Davidson used any other aspects of Brando’s identity in conjunction with the product line, or advertising and promotion of the boots. 

Over the years, I’ve seen quite a few situations where a company used only a single name in association with a product line, such as a line that has a “Marilyn” style purse, dress, fragrance or other product.  All things being equal, the name “Marilyn” conceivably could refer to anyone with that namesake, or no one in particular.  But sometimes, upon closer inspection, the product line is being positioned as a “Hollywood” line or something similar, and includes products featuring other movie stars who may be identifiable on a first-name only basis.  Similarly, I have seen product lines where the only aspect of identity is a single name, but the product is part of a package offering in which there is not only a “Brando” but also a “Bogart” and a “McQueen” for example.  In these scenarios, it would be hard for the company to argue that they were not tying the product specifically to Marilyn Monroe (in the former example) or Marlon Brando, Humphrey Bogart and Steve McQueen (in the latter example).  In context, the identity of these particular personalities becomes unequivocally identifiable. 

In class, I sometimes demonstrate this point through a hypothetical company that has a product referred to as “Michael.”  Common name, and likely no particular association is conjured without more context.  But, if that product happens to be specific to basketball, might the product be playing off of the consumer’s familiarity (consciously or subconsciously) with Michael Jordan?  What if the product features only Chicago Bulls’ team colors?  Or what if the product incorporates Michael Jordan’s jersey number in some fashion?  What if the product is sold primarily in Chicago?  Switching gears, what if the product is music-related?   That would likely eliminate any association to Michael Jordan, but may bring into play another singularly-famous Michael.  What if the product is a microphone or a style of clothing that is strongly associated with Michael Jackson?  I’m leaving these scenarios purposefully vague, and not taking a position myself, but hopefully these examples give something to consider.

At this point, I have not investigated the Harley Davidson product line, so I do not know if the two preceding paragraphs are applicable to Brando Enterprises’ suit against Harley Davidson.  I will note that the lawsuit alleges that Brando Enterprises has licensed use of Brando’s name to entities like Triumph motorcycles and Dolce & Gabbana, which means that an unlicensed Brando boot from a notable motorcycle manufacturer could not only present the issue and damages of an unlicensed product, but could also be undermining or conflicting with existing programs that Brando Enterprises has in place with its licensees.

Here is a link to the Forbes.com article:  http://www.forbes.com/feeds/ap/2011/05/17/business-us-harley-davidson-brando-lawsuit_8471562.html

Mattel’s Barbie doll rendition of Elly May Clampett character from The Beverly Hillbillies draws lawsuit from actress Donna Douglas

Motley Crue founder Nikki Sixx, promoting new book “This Is Gonna Hurt,” gives advice to young bands: “know the legal system”

Founding member of Motley Crue, author, and photographer Nikki Sixx is busy promoting his new book “This Is Gonna Hurt.”  In an interview with The Huffington Post, Nikki is asked what advice he would give to young artists.  His answer is dead-on:  “learn the legal system.”  Sixx practices what he preaches.  In fact, as his valuation expert in his lawsuit against Vans, he’s one rock star who could probably explain what “the Right of Publicity” is in some detail. 

I had the opportunity to serve as Nikki’s valuation expert in his lawsuit against Vans.  Vans ran a significant advertising campaign featuring Nikki’s image along with then-Skater of the Year, Tony Trujillo.  Nikki consented to the appearance and to give the award to Trujillo, but by no means would that consent have equated to the right to launch an advertising campaign.  The case was televised by Court TV.  Here’s a link to the announcement of his victory against Vans: http://emol.org/music/artists/motleycrue/vansuit.html

Here’s a link to Nikki’s full interview with The Huffington Post:  http://www.huffingtonpost.com/mike-ragogna/this-is-gonna-hurt-a-conv_b_858398.html

Dionne Warwick, former members of the Shirelles file suit over Broadway musical “Baby It’s You!”

Dionne Warwick, Chuck Jackson and surviving members of the Shirrelles have filed suit against Warner Bros. Theater Ventures and Broadway Baby over the recently launched production “Baby It’s You!”  The lawsuit alleges that the production constitutes “the brazen unauthorized use of their names and likenesses in connection with Defendants’ new Broadway show.”

The co-writer of the show, Floyd Mutrux was involved situation over his Broadway musical “Million Dollar Quartet.”  While a lawsuit was not filed in that situation, was a settlement allegedly was reached with Jerry Lee Lewis (who was a character in the production).  I won’t comment directly on the merits of the claim or its value, but I expect the language of New York’s Civil Law, sections 50 and 51, will be closely examined in the briefings.  Here’s a link to the New York law:  http://rightofpublicity.com/statutes/new-york

Pay attention to the language in the statute, about halfway through Section 51, which appears to address depictions of a living person in, among other things, musical productions.  Here’s a link to the story:  http://www.variety.com/article/VR1118036021

Follow me on Twitter:  @FaberLaw

“Obama Got Osama” products hit marketplace, reports USA Today. Anyone want to take a shot at that Right of Publicity analysis?

Within hours of President Obama announcing late Sunday night, May 1, 2011 that Osama bin Laden had been killed, merchandise with the phrase “Osama Got Obama” was hitting the marketplace.  What are the Right of Publicity implications?  Granted, it is a catchy phrase, and it certainly is a newsworthy event.  A product with the first name of an elected official (the President of the United States), as well as that of a deceased foreign national/terrorist/public enemy #1.  This could be a bar exam question!

Here’s a link to the story in USA Today:  http://www.usatoday.com/money/industries/retail/2011-05-02-bin-laden-death-merchandise_n.htm?loc=interstitialskip

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