Weatherproof: Blatant Legal Oversight Or Ingenious Foresight?

Monday, February 22nd, 2010 at 6:17 pm by Ari Taub

President Obama may have become so famous that he has a cause of action simply for the use of his face. Recently, apparel company Weatherproof used a picture of the President as the focal point of its new advertisement, which it plastered as a full-blown billboard in New York’s Times Square. It depicted President Obama wearing Weatherproof’s jacket, along with the tagline “A Leader in Style.” After the White House threatened Weatherproof with legal action, the ad was removed without contest. 

The question remains, however, whether Weatherproof could have successfully defended this action in court. It does not appear that they could have. The cause of action under which an individual can sue for the use of his “fame” is called the right of publicity, which is often thought to be a derivative of the right of privacy. However, the right of publicity is grounded in a “right to one’s personality,” which is not constitutionally protected, where the right of privacy has been deemed as such.

If the White House did sue Weatherproof in New York for the Times Square advertisement, there is a strong possibility it would prevail. Under the applicable New York statute, first applied in the Haelan Laboratories case, the answer becomes quite clear: the use of any living person’s “name, picture, portrait, or voice” for purposes of trade or advertisement without that person’s consent, creates liability—since President Obama is a “person,” his picture was used for purposes of trade and advertisement, and he failed to give consent, the plain reading of the statute should create liability. One could even argue that the term “Leader,” is synonymous with President Obama’s name, and, as such, may created liability by the use of that word, as well.

The liability that would be created should not be confused with the use of the President’s likeness on the front cover of a magazine, for example. Indeed, President Obama has appeared on no less than 30 major magazine covers since being sworn in last January! Although some states, such as California, have muddied the water on this issue, by embarking on the complicated task of discerning whether the use was predominantly for purposes of advertising, most states have generally exempted from liability the use of a public figure’s picture on magazines and other similar outlets, so as not to encroach on the all-important First Amendment rights of freedom of the press and freedom of speech (notwithstanding the fact that the magazines are arguably using the President’s picture for “trade”).

Although the use of the President’s face on the Times Square advertisement may have been a violation of the President’s right to publicity, and although Weatherproof’s attorneys likely advised as such, it was still improbable that litigation would actually ensue. However, notwithstanding the ad’s durational brevity, the impact might have been exactly what Weatherproof wanted: to have people, bloggers, and news outlets talking about the company. In this respect, it seems Weatherproof was highly successful.