The President and First Lady certainly have their hands full with pressing issues of local, national, and global significance. The country is trying to dig out from under the most profound economic downturn since the Great Depression, while Washington digs out from another fresh snowfall. On Capitol Hill, President Obama faces the daunting task of reconciling the Senate and House health care reform bills, while assuaging angry critics from both sides of the aisle. And having redoubled the war effort in Afghanistan, the administration must now deal with new threats to national security posed by “underwear of mass destruction” and a patchwork national security apparatus seemingly manned by the Keystone Kops, if not Moe, Larry, and Curly, not to mention Shemp. You would think those agendas would be enough to fill the plate of any chief executive. And you’d be wrong. To that crushing list of issues must be added yet another—Barack and Michelle Obama might soon find themselves as plaintiffs in twin lawsuits under the Lanham Act to enforce their rights of publicity. An enterprising clothing merchant, shrewdly if not fortuitously noticing the President wearing one of the company’s signature jackets on a China trip, has plastered a four-story image of a pensive Mr. Obama sporting a WEATHERPROOF-brand coat while gazing across the vast Chinese landscape atop the Great Wall. And, by the way, that iconic billboard sits atop a Red Lobster restaurant, promising a level of trickle-down prestige that the ubiquitous seafood chain could only dream to get from its bottomless salad bowls and all-you-can-eat shrimp deals.
Not to be outdone, PETA (the People for the Ethical Treatment of Animals) has fashioned a spray-painted van featuring a celebrity quartet dubbed the “Fur-Free Foursome,” including Michelle Obama, Oprah Winfrey, Carrie Underwood, and Tyra Banks. Not surprisingly, neither advertiser secured the approval, consent, or permission of the most powerful couple in the world. So, plainly, while the unauthorized use of the Obamas’ personae adds attention-grabbing luster to both campaigns, this right of publicity hijacking is not exactly kosher, as we lawyers like to say.
The White House took little time to respond, issuing the following statement: “The White House has a longstanding policy disapproving of the use of the President and First Family’s name and likeness for advertising purposes.” The release echoes one issued when the Obama daughters were mentioned on posters promoting healthy school lunches a few months back. Beyond that lukewarm reproach, what’s the man who appoints the Attorney General and Supreme Court Justices to do? After all, part of the motivation for usurping the President’s likeness is undoubtedly to cash in on his cachet. And, so far, the WEATHERPROOF jacket ads appear to have done just that. The jacket Obama is wearing on the billboard, called the “Ultra Tech,” sells for about $200 and is reportedly briskly moving off the racks. Bringing suit might deliver a pyrrhic victory, but would also cast even more of a spotlight on the questionable ads, while lining the pockets of the jacket maker. So, whether the White House will continue its policy of talking softly while wielding a muted press release remains to be seen. Who knows? Maybe these wayward advertisers will bow to presidential pressure and replace these offending ads with new ones featuring another prominent couple who, if not quite living legends, are legends in their own minds—Tareq and Michaele Salahi, the White House party crashers.
As we go to press, the New York Times reports that Weatherproof has issued the following statement:
“Although Weatherproof believes that it had sufficient legal basis for displaying the billboard, it will be replacing the billboard in order to cooperate with the request of the White House.”
MSNBC also reports that PETA is parking the van with Michelle Obama’s likeness. So, while pundits may bemoan the decline of presidential influence in some quarters, the bully pulpit remains alive and well when it comes to IP enforcement.