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.
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