Published Articles

November 16th, 2004

Had Enough Politics Yet?

The marketer of the Arnold Schwarzenegger bobble head doll, Ohio Discount Merchandise, Inc., reportedly just settled a lawsuit brought on behalf of the California Governor, alleging that the doll violated Schwarzenegger’s rights. According to media reports, under the settlement, the company – which sells many other bobble head dolls, including dolls that portray George W. Bush, John Kerry, and Jesse Jackson – will have the right to sell a different version of the Schwarzenegger doll, with a portion of the proceeds being donated to charity.

Companies have long used political figures for commercial purposes. Sometimes, an advertiser hires a politician to serve as a spokesperson. Who could forget Bob Dole’s ads for Viagra? Political figures are often used without their consent, however. Sometimes they do not object, perhaps thinking that unauthorized commercial uses just come with the territory of being in the public eye. But not all politicians feel that way.

In the 1960s, comedian Pat Paulsen, who also ran a tongue-in-cheek bid for President, sued Personality Posters, Inc. for marketing a poster of him. In the 1980s, there were lawsuits over sales of a plastic bust of Martin Luther King, Jr., and the use of a Jaqueline Kennedy Onassis look-alike in advertising. In the 1990s, New York magazine fought with the City of New York and the Metropolitan Transportation Authority over whether New York had the right to run a bus ad claiming that the magazine was "possibly the only good thing in New York Rudy hasn’t taken credit for." And the White House has a longstanding policy which generally prohibits the use of the

President in advertising.

What rights do politicians have?

Although the law varies from state to state, in order to use a person’s name, picture, likeness, or voice for purposes of advertising or trade, that person’s consent is generally required (unless the use falls under one of a few limited exceptions). This so-called right of "publicity" or "privacy" gives people the right, in many situations, to control whether they may be used for commercial purposes (and this right frequently continues for long after death). There is no exception for political figures. As the Supreme Court of Georgia wrote in its majority opinion in the Dr. King lawsuit, "we know of no reason why a public figure prominent in religion and civil rights should be entitled to less protection than an exotic dancer or a movie actress."

However, the First Amendment’s guarantee of freedom of speech gives people broad rights to speak freely, however, particularly about political issues. Balancing the rights of politicians to control how their images are used with the rights of individuals to debate the merits of their political figures is not easy, especially with the increasing convergence of marketing and entertainment. When a dispute arises, courts look at the context in which the politician is used, to see whether the use is essentially commercial. There are many factors that a court may consider in order to make this determination, such as what the relationship is between the use of the politician and the non-commercial message, or whether the use is transformative -- does it do something more than just use a political figure?

In one case, for example, a court refused to stop the sale of posters featuring a humorously dressed candidate Paulsen, with the words "for president" on the bottom, on the grounds that the poster was essentially political commentary entitled to full First Amendment protection. In another case, a court decided that the use of a Jackie O look-alike in a Christian Dior ad did violate her rights, saying that, "as a public figure she has not forfeited her right of privacy and does not become a subject for commercial exploitation."

So, if the President is in your marketing plans for the next four years, think twice about how you plan to use him, or you just may get a cease and desist letter from the White House.

- Jefrrey A. Greenbaum

This article first appeared in the November 2004 issue of SHOOT magazine. It presents a general discussion of legal issues, but is not legal advice, and may not be applicable in all situations. Consult your attorney for legal advice.