A number of news articles and commentators have noted that the Obama Administration plans on enforcing the President’s trademark and/or publicity rights against shifty manufacturers who have put Obama’s face or “trademarks” on a variety of products.
As the commentators have noted, there are serious First Amendment issues when a government official tries to prohibit a citizen’s use of the most powerful person in the world on any product, whether T-shirt, doll, or thong. Does the thong above just seek to capitalize on the President’s personal image (perhaps that’s protectable under state law rights to publicity), does it send a political message supporting the new administration, or does it send a political message that the new president should “kiss my *****”? Does the speaker matter? Does the profit motive (or lack thereof) matter? How in the heck does a newly minted president (and perhaps a newly minted IP-czar) figure out what to do?
Here’s my working list of standards that the Administration could consider:
- Differentiate between the President and other members of his family. Images of the president by himself, probably not actionable. There have been dolls of all sorts of presidents, and my guess is that Bush, Reagan, and Nixon (or their estate) didn’t get a license fee. That’s the cost of being a president. Likewise, use of the First Lady’s image can be used, so long as the company does not claim or imply that the product is specifically endorsed by Mrs. Obama. Images and likeness of the kids are not to be used except in bona fide news stories. (The TY Maila and Sasha dolls walk the line, but probably shouldn’t deserve a formal, legal response unless the dolls are made to appear like the First Children, or are marketed as the Obama children).
- Differentiate between elements of the Obama 2008 “campaign brand” and actions, policies, and statements of the President. What was remarkable about the Obama campaign was the degree to which the campaign was successful at branding the candidate — as the best agent for “change,” “hope,” and progress. Part of that campaign branding certainly was the Obama “O” logo. It’s certainly possible that consumers would believe that a product with the O logo would be either put out by, sponsored by, or endorsed by the campaign. And use of the campaign logos (without any political commentary) should not implicate the “core” First Amendment “political speech” rights. (Of course, that begs the question of whether a government official should be policing IP rights of Obama as a candidate or the Obama campaign).
- Differentiate between simple uses of the President’s image as a subject of the merchandise and attempts to state or imply that the president endorses a particular product. This is the trickiest standard to craft. The basic standard is pretty easy. If someone places Obama’s face on a package with a talking balloon saying “I endorse this product,” that’s probably actionable. Likewise, using Obama’s face on a T-shirt sponsored by a non-profit with the words “OBAMA IS A BAD PRESIDENT,” definitely not actionable. But at what point does a commercial entity (like, say, Pepsi) have the right to freeride on the Obama brand, imply that Pepsi is implicitly endorsed as the “soft drink of change,” or that President Obama is a Pepsi drinker?
Probably not this far:
- Finally, I’d suggest that anyone in the administration err on the side of not taking formal (or informal) legal action. The last thing this president needs is a whole bunch of whiny bloggers (like me) saying that publicity lawsuits by the president is counter to his policy agenda, unnecessarily money-grubbing, and downright hypocritical.
Anyone else have any good ideas for guidelines? (Oh, and Mr. President, if you need a contract attorney to write your cease-and-desist letters, I’m available.)
UPDATE: CNN has a great listing of the Top 10 pices of “Obama Merch” from the inauguration.