You may have heard about the outdoor performance clothing company Weatherproof using a picture of President Obama wearing one of their jackets in a billboard they placed in Times Square.
If you haven’t, here’s the long and short of it: Weatherproof launched an ad campaign, the apparent center of which was a billboard in Times Square featuring a photograph of President Obama wearing one of their jackets while standing on the Great Wall of China, during his recent state visit to that country.
The billboard simply featured the photograph, with the moderately-clever tagline “A Leader in Style” (Get it? It’s a phrase that can mean two things! Don Draper would be proud).
Apparently, Weatherproof went through all the appropriate steps to license the photograph from the Associated Press (which owned the copyright on the photo), thereby avoiding any copyright issues. However, they neglected to ask the subject of the photo for his permission to make commercial use of his likeness, which is not always a strict legal requirement, but it’s usually considered good practice.
Furthermore, the White House considers it extremely distasteful to use the president’s image to advertise a product. On the other hand, the advertisement never contained a statement or direct implication that President Obama endorses the jacket. Boiled down to its essentials, the ad simply says “on at least one occasion the President of the United States chose to wear one of our coats”, which is true. Of course, they likely hoped for consumers to see the ad and figure that if the jacket is good enough for the president, it’s certainly good enough for them.
White House lawyers immediately demanded that the billboard be taken down, claiming that the advertisement violated the president’s right to publicity, and, legalities aside, it’s inappropriate to use an image of the President to sell a product.
Without putting up much of a fight, Weatherproof relented, and agreed to take down the billboard.
However, was it legally obligated to do so? The law governing the right of publicity can vary greatly from state to state. Generally, however, a person has a right to control the commercial use of their likeness, especially public figures and celebrities, whose names and images tend to have significant monetary value. While there are no copyright issues with the use of the photo, President Obama is still an individual whose likeness could be extremely valuable. The fact that he is President does not change his legal rights.
People who follow stories like these are no doubt disappointed that Weatherproof relented, and the legal issues surrounding this situation are not going to be resolved.
In the end, however, it’s likely that this reaction is exactly what Weatherproof was hoping for – before this happened, I had never heard of the company. Now I have. In the end, isn’t that what’s advertising is all about?
I’ve blogged before about how creating legal issues can draw attention to oneself, usually focusing on the negative consequences of this, such as spreading a defamatory statement to a wider audience. It seems that Weatherproof, however, has found a way to make this fact of the legal world work for them.
