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The Obamas' Right to Publicity

This week President Barack Obama was spotlighted in a billboard advertisement for a brand of outerwear, Weatherproof. First Lady Michelle Obama was unwittingly included in an advertisement for the People for the Ethical Treatment of Animals (PETA). In addition to the actual advertisements, the organizations are reaping the benefits of residual media coverage created by the controversies surrounding their unauthorized campaigns. Is it appropriate, or even legal, to publish advertisements including individuals without their permission? Are public figures fair game by virtue of their celebrity?


The use of one's image or likeness, celebrity or otherwise, is covered under the Right to Publicity law, a derivative of the Right to Privacy; individuals are guaranteed protection from application of their "likeness" (name or image) on a product or service without their explicit permission.

The Federal Trade Commission (FTC) offers guidance on the use of endorsements in advertisements and by and large the directives are for the protection of the consumer. While the image of President Obama in a Weatherproof bomber does not conflict with these guidelines, because his permission to be used in publicity was not provided, it is unlawful.

But is it effective marketing?

Maybe. The number of media impressions gained by one bill board is certainly improved when the billboard becomes the subject of AP news. And while it is highly unlikely that Mrs. Obama will be suing PETA, celebrities have repeatedly sought and achieved financial retribution for the unauthorized suggestion of their endorsement.

Some examples:
Curtis Jackson, aka Rapper 50 Cent is currently suing
Mario Andretti v. Borla Performance Industries, Inc. 2005
Bette Midler v. Ford Motor Co.1988
Dennis Hoffman v. Los Angeles Magazine 1997

Fellow Boston marketers - be warned; all of the above applies equally to impersonators as well.




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