The Right of Publicity Takes a Hit

by Paul Alan Levy

Two controversies about the use of images of the Obama family received attention this week, with resulting recognition that possible right of publicity claims would not only be unwarranted but would offend the First Amendment.  Given the frequency with which bogus right of publicity claims are used to try to suppress truthful commentary, this slap at the right of publicity is welcome.

The first controversy involves the portrayal of Michele Obama in a line of lesser celebrities — Oprah Winfrey, Tyra Banks, and Carrie Underwood  — with the headline, “Fur-free and Fabulous.”  Michele Obama did not appear physically in the line to be photographed (she was photo-shopped into the lineup), but the ad is based on the truthful statement that not only in the image, but also more generally, she does not wear furs.  Although public opinion seems to vary about whether it is ethical or tasteful for PETA to use her image without her consent, nobody seems to dispute that the First Amendment would protect PETA’s right to use the photo without her consent, even though it effectively aligns her with PETA’s policy positions and, indeed, with PETA itself.

A related controversy, resulting perhaps in a more interesting limit on the right of publicity, relates to a new ad from Weatherproof, a maker of jackets, that portrays Barack Obama standing at the Great Wall of China wearing one of their jackets.  Apparently, the company spotted a photo showing him in its garment, bought the rights to the photo, and is now using the photo to sell its jacket by showing that Obama is one of the fashionable people who wear it.  As in the Michele Obama case, the White House complained, but everybody seems to agree that Obama won’t sue, not just because presidents don’t trifle with such litigation, but because Obama has no legal leg to stand on.   He is a public figure and the ad is truthful — Obama did, in fact, wear its jacket standing near the Great Wall (nor could China sue, despite what the Mexican Government might think).  (Ht colleague Greg Beck for pointing to this earlier example of a marketing campaign using Bill Clinton’s image with a milk mustache.

An important difference between the two uses is that PETA is making a political statement — of course First Amendment protection is at its greatest for political speech — but Weatherproof is just trying to sell its jacket.  The First Amendment protects truthful commercial speech, and the fact that Obama could, in theory, charge for endorsing a jacket does not mean that his rights are violated when Weatherproof finds and publicizes a photo showing his use of its product.

That is not to say that PETA and Weatherproof ran no risk when they started these ad campaigns.  When receiving questions from reporters, the White House could have released statements from her denouncing PETA for extremist opposition to the use of animals in medical testing (“she thinks it is better to test on animals first instead of using poor people and prisoners”).  Similarly, the White House could have told reporters, oh yes, he did wear the jacket but later decided that it is a cheap and inferior product.  But instead, the White House seems to be playing along, at least with PETA, by agreeing that Obama really does share PETA’s position on furs.

In an article about the two controversies, Washington Post reporter Robin Givhan used a revealing lede,
adverting to the fact that one magazine after another has found some story to write about how the Obamas relate to their subject matter, thus seizing an excuse to put one or both of them on the cover.  Says Givhan: “It was only a matter of time before admiration turned into appropriation.”

What is interesting here is the assumption that it is (mis)appropriation when a political group does it and when a clothing company does it, but not when the media do it.  But isn’t is obvious that magazines were putting the Obamas on the cover to sell magazines?  Givhan’s article admits that — she says, “no small part of the allure has been the sort of personal magnetism that connects with consumers as they bide their time in checkout lanes,” and quotes PETA's preseident explaining, "It's hard not to look at her and feel good."

This, too, is a use of the Obamas’ selling power to sell the products of companies’ who have never received consent from the Obamas.  In fact, political groups and companies as well as the media are constantly trying to associate themselves with a variety of famous personages, no matter what some “right of publicity” cases may say.  It is high time to consider how far the right of publicity needs to be cut back, or whether it causes more trouble than it is worth.

Comments

[Steve Hofer]

My hometown is the headquarters of Curtis Management Group (now primarily known as CMG Worldwide), perhaps the biggest licensor of celebrity "images". I watched in horror as this company bragged about how it won court decision after court decision extending the right of publicity indefinitely. I noticed that the companies and individuals that they sued had no resources to fight. Effectively, CMG was arguing against empty chairs. They also engaged in what I call distant forum abuse, suing defendants where it is inconvenient or practically impossible to defend. I also noticed how CMG lobbied in state legislatures claiming huge economic advantages of a long-term right of publicity. The other side rarely had an advocate.

I agree with you, Paul, that the Right of Publicity can put free speech at risk. For example, when you can't market a biography of Martin Luther King without going through his estate, history is being censored.

In the last 25 years, I've seen how the right of publicity has grown from bootstrap roots of unfair appropriation of the image of a living person to a perpetual super-copyright for people living and dead. I believe that when the Constitution provided Congress the authority to secure the works of artists and inventors for a limited time, it was an implied endorsement that there should be no perpetual patents or copyrights. The right of publicity flies in the face of this policy.

Thanks to you and Public Citizen for all of your work on this and other issues.