Where does the buck stop, again?
January 26, 2009 8:20 AM   Subscribe

Obama merchandise is everywhere. Why are manufacturers allowed to make money off his likeness when they would be sued into the ground if they made the same items using, say, the likeness of Elvis or Rick Astley?
posted by anastasiav to Law & Government (11 answers total) 2 users marked this as a favorite
Public figure?
posted by Aquaman at 8:29 AM on January 26, 2009

Um, because he's the president, rather then a 'private' citizen? There would be all kinds of free speech issues involved if politicians prevented people from using their likenesses. I think Obama probably could prevent some of that stuff if he wanted too, but the president's likeness has always been pretty much in the public domain.

People sold Bush and Clinton stuff as well, although usually to make fun of them.
posted by delmoi at 8:33 AM on January 26, 2009

I am guessing that the answer is because he (or the whitehouse or the government) would not be manufacturing these items so the profits aren't being stolen from an "official supplier" that has the right to the make them.
In addition, the people have the right to comment on the government an any way they want.
posted by Drasher at 8:33 AM on January 26, 2009 [1 favorite]

(I should say, the president's image has always been de facto public domain, if not de jure.)
posted by delmoi at 8:34 AM on January 26, 2009

A while back, Governor Schwarzenegger sued someone who made bobble-head dolls of his likeness, there was an article about it in the New York Times. (Sorry if it requires registration.)

The quote more applicable to your question:
That noted, Mr. Volokh said, it is rare for a politician to file a claim based on the right of publicity. ''It just doesn't look good when a public official tries to sue this way,'' he said. ''It makes him look like a heavy. It makes him look humorless. It makes him look like he doesn't want his constituents to express themselves this way.''
posted by lore at 8:41 AM on January 26, 2009 [3 favorites]

I think it also has something to do with the fact that they KNOW that there is NO way President Obama is going to take legal action against them -- the public relations hit he would take would be immense.
posted by Rock Steady at 8:43 AM on January 26, 2009

Oh, and the result of the bobblehead lawsuit: Schwarzenegger settled. As I understand it, removing the gun was a way of distinguishing between Schwarzenegger the actor and Schwarzenegger the politician.
posted by lore at 8:44 AM on January 26, 2009

Schwarzenegger is a bizarre case because he was a celebrity/commodity with actual $value first, long before he was a politician, and his claim to publicity was based on his action-hero marketability.

I can't think of another politician this really applies to (yet) so its not a great comparison.

So "Public Figure" is the answer, yeah.
posted by rokusan at 9:09 AM on January 26, 2009

Wow, lots of bad answers here.

The following is a quote from "Is Obama really OK with that 'inauguration thong' for sale? And if not, does the law allow him to stop it?":

The District of Columbia and most states afford people a right of publicity, giving them the authority to control how their images are used. That means, say, that I cannot put a photo of Kate Winslet on a T-shirt and sell it without her permission. But the law makes an allowance for the free-speech guarantees of the first amendment to the United States constitution, protecting people and organisations, like newspapers, that must use a public figure's image on a commercial product without seeking authorisation.

"When somebody is a political figure, those concerns are quite significant," said Rebecca Tushnet, a professor at Georgetown University law school who specialises in intellectual property, advertising and first amendment law. But the law is unclear on what is protected, she said. "It's not something that's much tested because politicians don't typically bother to try and suppress these things."

Tushnet explained that if Obama did want to sue the maker of that Obama thong, he might have a case. That is because the courts could find that in order for the undies to be considered protected speech, they must express a message.

I'll hazard a guess that Obama is unlikely to pursue action against the thong makers, but you never know.
posted by ND¢ at 9:11 AM on January 26, 2009 [3 favorites]

Related story recently on NPR's Marketplace.

Essentially, use of Obama's likeness isn't of as much concern as unauthorized use of the Presidential seal. In the story, "University of Richmond Law Professor Carl Tobias says the White House can't do much about the use of Obama's image, because he's a public figure."
posted by pineapple at 9:44 AM on January 26, 2009

Interesting post from an IP lawyer recently in the Patently-O blog: Sasha and Malia Dolls: Legal Remedies for the Obamas
posted by naju at 10:29 AM on January 26, 2009

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