Benetton’s “unhate” campaign could be more than just a publicity stunt

Benetton has recently issued an advertising campaign featuring images of President Obama digitally altered to appear as though he is kissing Venezuelan leader Hugo Chavez, and in another spot, Chinese President Hu Jintao.

Benetton euphemistically calls it “an invitation” to “combat the culture of hatred.”  It still remains an advertisement.

The White House issued the following statement in response to Benetton’s ad:  “The White House has a longstanding policy disapproving of the use of the president’s name and likeness for commercial purposes.”  Sounds like someone at the White House may have a functional awareness of the Right of Publicity.

Here’s a link to more details on the advertising campaign:  http://digitaljournal.com/article/314625

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

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.