Question

Ads on Times Square that feature well-known personalities clad in brand-name items are not unusual. However, the building-size photo of President Obama in a Weatherproof Garment Company jacket in an ad touting the company’s apparel was out of the ordinary. The ad caught the attention of more than the millions filing through the public square. The office of White House Counsel also took note. “The White House has a longstanding policy disapproving of the use of the president’s name and likeness for commercial purposes.” Mr. Obama had not granted permission for use of his photo.

The photo used in the ad was one taken while the president was at the Great Wall of China in November. Freddie Stollmack, president of Weatherproof Garment Company, spotted the photo in the news and, using a magnifying glass, was able to identify the company’s logo and zipper. The company did pay the licensing fees for use of the photo, one taken by the Associated Press (AP). AP, however, noted that it is the user’s responsibility to obtain permission and clearances for how the photo is used. The New York Times, the New York Post, and Women’s Wear Daily turned down the presidential ads Weatherproof had tried to place with them.

Weatherproof is known for its publicity-grabbing advertising techniques. In 2008, it issued a press release touting its unique approach of running the shortest ads on the Super Bowl—two seconds. A later press release confirmed that no ad would be run because two-second ads are not available during the Super Bowl. In 2006, Weatherproof photographed company representatives putting a coat on the Naked Cowboy, a well-known street performer in New York City. The White House legal counsel had its hands full with ads because during the week prior to the jacket hoopla, People for the Ethical Treatment of Animals (PETA) ran an anti-fur ad that featured Michelle Obama on billboards in the Washington, D.C., area. Mrs. Obama had also not given permission. The White House did contact PETA about the ad but did not discuss whether the parties had reached a resolution.

What are the rights of those whose images or likenesses are used for commercial purposes without their permission?

Is there something different about public figures? What about First Amendment issues?

Could Weatherproof argue that it was simply revealing what type of coat the president was wearing, just as newspapers reveal which designers the First Lady uses for her wardrobe?

Evaluate the ethics of PETA and Weatherproof in their use of the First Family’s images.

(Stephanie Clifford, “A Coat Endorsed by the President? The White House Says No,” New York Times, January 7, 2009, p. B3.)

Answer 1

It is important to use permission before using the images or names for commercial purpose. There are two important legal claims which can be applied for the unauthorized use. This is related to invasion of privacy by usage of likeness or name. Another one is violation of the right of publicity. A person has the right to control the commercial use of their likeness or identity. The legal principles are common to the claims and there needs to be establishment of important elements to hold someone responsible for the use of the personal image or name. This includes use of protected attribute wherein it is necessary for the plaintiff to show that aspect of the identity which is protected by the law has been used.

Another element is use for exploitative purpose wherein it needs to be probed that someone's name or likeness is used for exploitative purposes.

The third element is of consent. It needs to be established that there is no consent taken for this purpose.

A plaintiff should be able to prove that there has been a misappropriation or right of publicity claim must reveal that the attributes of the defendant were used. The identity is protected by law.

The other women who were featured in the advertisement have been associated with PETA. However Michelle Obama did not provide any permission to PETA to use her image for the advertisement. PETA thought that the stance of no fur was an important statement and she was in a public domain so it was not required to take her permission

The White House has a longstanding policy for using the name of the first family and the president. They are against using it for any advertising likeness purpose