Is It Legal For A Clothing Company To Show President Obama Wearing Its Jacket?
from the it's-accurate,-right? dept
One of the trickier and more recent "intellectual property" (and I use the term loosely) rights out there is the "right to publicity" which was an odd sort of invention designed as a way for certain famous people to stop companies from putting their pictures in ads and imply endorsement. But there are some fuzzy borders here, especially when it comes to First Amendment free speech rights. Paul Alan Levy has an excellent discussion on two separate cases where publicity rights came up with regards to President and Mrs. Obama. In the first, PETA used Michelle Obama in an advertisement, as an example of someone who doesn't wear fur. In the second, sporting goods company Weatherproof used a photo of Obama wearing one of the company's jackets while he was in China to highlight the sort of customer they have. Levy points out that the White House was upset and complained about both uses, but likely had no legal right to complain: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...Where it gets even more interesting, is that Levy notes that a reporter for the Washington Post pointed to the similarities with various media publications writing up some story about the Obamas solely to get an Obama photo on the cover, knowing that it would sell well. However, oddly, the Post reporter seems to think this is just fine for the media, but a problem when it's someone else:
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.
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."Indeed. The deeper you look at the right of publicity, the more ridiculous and less justifiable it seems. It almost always serves to stifle free speech.
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.
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Filed Under: first amendment, michelle obama, peta, president obama, privacy rights, publicity rights
Companies: weatherproof
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Obligatory Reference
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Royal Warrants anyone?
http://en.wikipedia.org/wiki/Royal_Warrant
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Re: Royal Warrants anyone?
http://www.quatech.com/about/customers.php
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As a matter of national security, no.
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Customers include..
Unless the customer specifically requested to the contrary at the point of sale then it's fair game as far as I can see.
Caveat Emptor!
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Re: Customers include..
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Unless you specifically requested to the contrary at the point of sale then it's fair game, right?"
Yes it is - but then if such a company listed its customers it soon wouldn't have any and I guess most customers would also realise this.
Also there may not be a hard boundary between corporations and individuals.
Eg Donald Trump, Richard Branson, Steve Jobs...
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Re: Re: Customers include..
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Fur Trader
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I thought both uses were awesome...
As for the issue at hand, I don't see that either instance was a big deal. If they paid for the endorsement, that would be a problem. But to show the President chose your jacket on his own, without being a paid endorser, seems fair game to me.
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Re: I thought both uses were awesome...
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Why all the fuss?
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im not sold that right of publicity is not exactly a bad thing here. and i still see a difference between the clothing line using obama and PETA using mrs obama.
yes, it is a fact that he wore this jacket at the great wall. nice you sold it. and yes we all know you cant copyright facts... but even a moron in a hurry can tell that its an advertisement. even if they paid someone to write a long fact based article about how great their clothing line is its still just an ad (an annoyingly long one at that point, but still an ad).
PETA is more of a political organization. they may be nuttier than a payday in a planters peanut factory, but their goal is not to make money based on the use of mrs obama's (or any other kook that publicly avows their principals) image. they are pointing at a public figure and saying "this person does not wear fur and we support that idea.... this person does wear fur and we think they should burn in hell forever and ever, ramen. and we shall now pass out the koolaid and tinfoil hats".
now, in the first case, the person involved should have the right to say that they are not going to be a part of that ad campaign and that the company should stop using that image immediately since it is blatantly an advertisement and realistically anyone should have the right to say no to being involved in that for whatever reason they might have.
in the latter, the closer you get to being a political organization (no matter how filled with whackjobs it might be) the more you can rely on the first amendment to pull off something like this. especially when the politicized goal of your organization is to bring about social change (in this case the idea that cows and minks are somehow higher on the food chain than homo sapiens).
they may not sound all that much different, but in reality the two situations are worlds apart.
and the idea that right of publicity is not justifiable is just flat wrong. anyone be they a well known public figure or just some schmo on the corner should be able to say I do not want to be associated with this and I do not give you permission to make me be associated with it against my will.
and the final and yet most misunderstood part... there is no such thing as absolute freedom of speech. you cant yell fire in a crowded theater, liable and slander are still illegal and I only have the rights to post my thoughts on this particular forum because someone lets me. but i have no legal standing to force this site to allow me to post based on free speech since it is a privately held server and company and its main goal is (supposedly) not political in nature. these are all situations where my freedom of speech can be impeded. and last i looked, free speech didnt really cover the right to advertise however the hell you want... especially when it runs head first into issues in which freedom of speech is actually limited (e.g. a companies right to advertise how they like versus my right to not be used by that company without any input, say in the matter or any other controls").
/wall o' text.
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You analogies are also weak at best. The reason you can't yell fire in a crowded movie theater is that someone can get hurt. Liable and slander are not liable and slander if you are telling the truth, much like saying Obama wears our clothing which was true.
You, or at least your perspective, is part of the problem with America today.
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Where exactly is that right guaranteed?
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I do hope that's in jest... I dislike PETA's methods and over-the-top stance as much as the next rational human being, but that is an extremely weak argument against animal testing, and there are quite a few reasonable ones.
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Would that be any more acceptable?
Should anyone be allowed to use your image in any way they like to suggest (right or wrong) that you support their products, their causes, or their ideals?
In the end, both of those advertisements are wrong, PETA needs to get itself slapped hard for this one, and the coat company should get at least a finger wagging. In the end, they got what they wanted, international publicity.
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It may seem more distasteful for a company to do the same thing in a more directly commercial way, but as long as they don't state any endorsement beyond the implied ones that come from a photo of Obama wearing their jacket or the first lady avoiding fur (both simple facts), I can't imagine any reasonable (or desirable) law that would prevent this.
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The numbskulls at PeTa are the same: they are trying to sell something, although it is an agenda rather than an actual piece of clothing (although I suspect they sell lottttttttts of t-shirts). It comes to the same thing: Associating someone with your product for gain, financial or political.
Both of them are tasteless, and unlicensed use of someone's image (not photo, image or likeness).
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Since it's clear you didn't read the article, here's a quick instruction for you: RTFA.
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Your attempts to bait are horrible, your bait is stinky.
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If it's not lying, falsely implying endorsement, or violating anyone's legal right to privacy, I don't see how you could reasonably stop that behaviour without creating a) a big legal slippery slope or b) a law with so many conditions and caveats that it is a nightmare
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peta sucks
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while i get that it is not illegal
Granted Maxwell house used "delicious, good to the last drop" (extra credit for who seaid it), but they got permission to do so.
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I don't know much about the relevant laws, but it seems to me that if a "moron in a hurry" seeing the ad would think that the person in question was involved in endorsing the product in question, then that's not okay.
I think the PETA ad and the jacket ad both clearly cross this line (especially with the photoshopping); these ads really seem to suggest that the Obamas are posing for the ads (implying endorsement) rather than that the company just wants to point out the fact that the Obamas happen to not wear fur or use their products.
(To be clear, this definitely isn't a copyright issue we're talking about here: the copyright to the Obama photo is owned by Associated Press, which licensed it legally to the company in question.)
As for photoshopping, I think clearly people should be able to photoshop official (public domain) White House photos as long as they do so in a way that doesn't violate libel laws (e.g. photoshop something to make it seem like Obama is making out with an intern), publicity rights (e.g. these ads), etc.
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