The White House is currently handling two separate disputes related to unauthorized use of images of President Barack Obama and first lady Michelle Obama. Oddly enough, both matters relate to the first couple’s preferences for outerwear.
For the President, it was his decision to wear what was apparently a coat made by the Weatherproof Garment Company when visiting the Great Wall of China that led to the current controversy surrounding the unauthorized use of his likeness on a billboard in Times Square.
For the first lady, it was her decision not to wear fur coats that led to PETA’s unauthorized use of her likeness as part of its anti-fur campaign.
The ultimate issue legally in both cases is whether an “endorsement” has taken place.
Weatherproof could argue that the use of Mr. Obama’s image (which was licensed by the Associated Press) is merely a factual depiction, and that nowhere on the ad does it explicitly say he has endorsed it. PETA could similarly argue that its use of Mrs. Obama’s image along with the words “Fur-Free and Fabulous!” is merely a statement of fact, namely that the first lady does not wear fur.
Both arguments are likely fairly weak, as the White House could just as well argue that, in both instances, the parties’ respective uses create an implicit endorsement.
Right of publicity cases generally involve commercial celebrities (athletes, entertainers, etc.) who frequently license their likenesses for profit. The Obama cases are interesting because they raise these issues in a context (presidential politics) where they generally don’t arise as often.
For advertisers and businesses, the takeaway here is kind of a no-brainer: don’t use images of well-known politicians without their permission– especially in a manner that is likely to suggest sponsorship or approval.