Presidential Right of Publicity
There was an article yesterday about the company that sells the “Chia Obama,” which is like the “Chia Pet” that you slather with seeds and then water to make a boring ceramic figure look slightly less boring. (As I tell my intellectual property students, not all lucrative inventions are complex. Go ask the inventor of the pet rock.) The news was the Chia Obama was pulled from stores because the firm concluded that the product was inappropriate for its image.
This raises a broader question, which is to what extent, if at all, can the President control the use of his image for commercial purposes. Traditionally, politicians have operated on the assumption that there is no such thing as overexposure. Teddy Roosevelt was famous for delighting in the appearance of his likeness on all sorts of goods, culminating with the borrowing of his name for the teddy bear. Nevertheless, a spokesperson for the Obama Administration told Bloomberg News in February: “Our lawyers are working on developing a policy that will protect the presidential image while being careful not to squelch the overwhelming enthusiasm that the public has for the president.”
What are the President’s legal options? In the states that recognize a right of publicity, he should have plenty of protection unless a use raises a First Amendment defense. Courts have generally taken a broad view of what counts as a commercial use for purposes of publicity analysis, even when the expression was predominately political, which means that almost all uses of Obama’s name or likeness on products that are sold without his consent are suspect. On the other hand, publicity cases usually involve show business folks rather than elected officials, and the latter category probably merits different treatment. It is far from clear that a court would bar the National Rifle Association from selling a presidential bobblehead doll that depicts him holding a semi-automatic just because the sales make money for the NRA.
In the states where no right of publicity is recognized, the White House faces a tougher road. Perhaps the President could claim a common-law trademark and demonstrate commercial use through the souvenirs his campaign sold in 2007 and 2008. Whether he could maintain his interest in the mark while President, though, is less clear because it is hard to say that he is engaged in commerce in office. I do not know what, if any, registered marks the President might have, but this would eventually run into the same “abandonment” limitation. (A First Amendment defense, of course, would also apply even if Obama could claim trademark rights, plus a defendant could try and assert fair use.)
Perhaps the only thing the President can do is jawbone people when he doesn’t like the people profiting off of him. Or how about offering a tour of the Rose Garden (seeds and water included) to the Chia Obama executives in exchange for a cut of their proceeds?