On January 6, 2010, The Weatherproof Garment Company (a division of David Peyser Sportwear) put up a billboard (actually two, a diptych) in New York's Times Square. The advertiser used an Associated Press (AP) licensed photo of President Barack Obama during his visit to China's Great Wall back in autumn wearing a Weatherproof jacket. Legal pundits have long discussed and opined whether the First Amendment trumps the commercial product endorsement (commercial free speech being more limited than free speech per se). One thing is VERY clear--the AP's contract required that "the necessary clearance" be obtained prior to the Weatherproof Garment Company's use of the image. Weatherproof president Freddie Stollmack blandly told the media he had not bothered to obtain the clearance. The White House legal team has already been in contact with both AP and Weatherproof's parent company.
…and what about the Wall? It will be interesting to see if the Chinese Consulate complains about the advertiser's unauthorized use of that country's GI--geographical indication--namely the image of The Great Wall of China. For those who may not be aware, this is a growing and interesting area of international IP law, which extends protection to countries over the commercial use of their cultural icons.
Bottom line, agencies and advertisers alike need to consider which rights (image, voice, video, etc.) need clearance--whether it’s the Chief of Staff in a wind slicker or a protective barrier built in the 7th Century B.C.