“Oh, he wants to do a selfie,” President Barack Obama observed with amusement before gamely posing with Boston Red Sox designated hitter David Ortiz. Ortiz snapped the shot using his Samsung smartphone during a visit to the White House in April, later tweeting it along with “What an honor! Thanks for the #selfie, @BarackObama.” But when the photo went viral and Samsung — which, unbeknownst to the president, recently signed Ortiz to an endorsement deal to be its “MLB social media insider” — retweeted it, the White House was far from amused. Senior White House advisor Dan Pfeiffer even mused that it might “be the end of all selfies.”
Such incidents have become increasingly common during the age of the selfie. Ellen DeGeneres’ celebrity-filled selfie taken during her hosting of the Oscars stirred up similar attention and criticism when it was later revealed to be a Samsung marketing stunt. The Obama-Ortiz selfie raises a unique set of legal questions, placing a spotlight on how the president’s individual right of publicity conflicts with free speech considerations, colliding against a backdrop of increasingly interwoven contexts: news, entertainment, social media, and advertising.
It is hard to imagine that the president of the United States would bring a lawsuit for violation of his right of publicity. But could he?
The Right of Publicity
Broadly defined, the right of publicity is an individual’s inherent right to control the commercial use of his/her identity, including name, image, and likeness. Unlike trademark, copyright, and patent rights, there is no federal right of publicity. Instead, the scope and application of the right is defined by state law, and varies considerably from state to state, with some states codifying the right in statute only (e.g., New York), others recognizing only a common law right, and still others recognizing the right in both statute and common law (e.g., California).
Consequently, success in a right of publicity suit could hinge on where the aggrieved plaintiff resides (the place that usually governs which right applies) or where he/she files suit.
This kaleidoscope of right of publicity laws has significant ramifications for how one assesses whether use of a selfie violates any individual’s right. Despite state variations in the right, at least two common issues arise when attempting to answer this question. First, the right of publicity typically protects against unauthorized commercial use of a person’s identity. In the case of a selfie, did the person somehow give his/her consent? Second, does the First Amendment interest in free speech outweigh any potential encroachment on his/her right of publicity, particularly when the subject is a figurehead, such as the president?
Context is crucial. Use that is consented to in one context may be entirely unauthorized when shifted to another. Similarly, use of the same photo, name, or likeness in one setting may be considered speech related to public affairs, while a slight shift in context could render that same speech commercial, and thus deserving reduced First Amendment protection. These issues come into play when considering the implications of Ortiz’s tweet versus Samsung’s retweet, as each act was a separate use of the selfie in a distinct context.
States assess the sufficiency of “consent” to use differently. The statutes of some states require written consent. In other jurisdictions, consent can be implied from the circumstances, but states assess the adequacy of implied consent differently. Additionally, while a person may consent to one type of use of his/her identity, such consent does not necessarily extend to use for other purposes or in other contexts.
Obama seemed to consent to the actual taking of the selfie; he acquiesced to Ortiz’s suggestion with a smile and a laugh. Similarly, it would be hard to imagine that Obama, posing with the famous ballplayer, did not expect and therefore consent to the athlete’s public use of that photo on Twitter or other social media. He might even have expected Ortiz’s myriad fans and followers to retweet or otherwise share the selfie.
Samsung’s use of the selfie, however, is something altogether different. First, there is little doubt that Samsung’s retweet and proclamation that the photo was taken with a Samsung Galaxy Note 3 were clearly efforts to associate its product with the president for marketing and promotional purposes. Second, while one could imagine Obama implicitly consenting to Ortiz tweeting the selfie, it is a step further to presume that Obama was also implicitly signing off on Samsung’s retweet to advertise its smartphone. Indeed, the White House’s response to Samsung’s retweet seems aimed at making it clear — both for this instance and any that might arise in the future — that the White House “certainly objects” to the president’s image being used for commercial purposes.
Newsworthiness and Free Speech Concerns
Even if the president did not authorize Ortiz’s or Samsung’s respective tweets, use of the selfie might still fall under a statutory exception or qualify as protected speech under the First Amendment. Some states (e.g., California, Illinois, and New York) exempt from liability noncommercial uses such as newsworthiness, sports, public affairs, and political campaigns. Additionally, a use could be protected under the First Amendment. A use relating to public issues or politics would garner stronger First Amendment protection than a commercial use, including advertising.
The commercial versus newsworthy/political distinction is critical here. Because Obama is such a renowned public and political figure, nearly any use of his identity in the media is arguably newsworthy. Similarly, much expression relating to the president would likely be considered political speech at the core of First Amendment protection. On the other hand, there is also likely a point at which use of the president’s image or likeness could be seen as a pure attempt to promote a product by associating it with the president.
In the Obama-Ortiz selfie arena, context is key. One could certainly argue that Ortiz’s tweet falls under a “newsworthy” exception; he was visiting the White House to celebrate winning the World Series and snapped a shot of himself with the president. The event was publicized, and Ortiz has stated that the selfie was not for promotional purposes, but was instead a spontaneous moment of fun with Obama. However, the Samsung retweet again presents a different use within a different context. Samsung retweeted Ortiz’s photo of a newsworthy event in order to promote the Samsung Galaxy Note 3, not to comment on a newsworthy or public issue. This type of use garners reduced First Amendment protection, and Samsung would likely have a harder time asserting a First Amendment argument in the context of a right of publicity claim. However, the news coverage of the whole incident, which included copies of the selfie, falls back within the newsworthy exception.
Parting Selfie Assessment
Though the president possesses a right of publicity like any other individual, he is significantly impacted by free speech considerations and the impracticalities of a seated president bringing a lawsuit to fruition. Instead, the White House will likely continue to make clear that use of the president’s image for commercial purposes is unauthorized. Already, Olympians visiting the White House after the Obama-Ortiz selfie scandal have been told that they will not be allowed to take selfies with the president and must keep their cellphones in their pockets while meeting him.
Even if the selfie were merely a spontaneous moment between Big Papi and the commander in chief. The frequency of such moments will likely decrease after this ordeal. Indeed, for Obama, selfies may be more trouble than they are worth: Late last year, the president faced a storm of criticism after posing for a selfie with the Danish prime minister at Nelson Mandela’s memorial service, a scandal later coined “Selfie-Gate.” But this will hardly be the final word on selfie-related legal issues. Would a blanket “no selfie” policy trigger further First Amendment concerns? Would “the end of all selfies” constitute a prior restraint? As technology continues to develop and complicate interactions among public figures in the media, these questions, while entertaining, will also become increasingly tricky to answer.
Originally published in the Daily Journal on April 16, 2014.