In an exercise of curious judgment The Weatherproof clothing company elected to employ a photograph of our President in an advertisement for its apparel. The ad took the form of (at least) a giant billboard in Times Square a/ka/ The Crossroads of the World. Weatherproof has stated to the media that the image was a news photo taken of Mr. Obama at The Great Wall of China and was “purchased” from the Associated Press. It appears that Weatherproof didn’t bother to check with the White House and did not obtain a written model release.
Political and public relations considerations aside, Mr. Obama has every right to commence a lawsuit under (at least) The New York Civil Rights Law Sections 50,51. That law which requires model releases to be signed and in writing, does not distinguish between politicians, models, celebrities, actors or just plain folk. The law may be employed by anyone whose picture, portrait or likeness is employed for trade or commercial purposes without their written consent. Legal remedies available include: compensatory damages, punitive damages and obtaining a court order directing the removal of the offending image.
In addition, Mr. Obama could bring suit based on various aspects of trademark law including The Lanham Act which generally state that the appearance of a false endorsement by a celebrity violates their right to commercially exploit their own personae.
I will be happy to represent the President without charge if he agrees to donate any and all proceeds to the Ovarian Cancer Research Fund and/or other cancer related charity. Mr. Obama, my number is (212) 697-8777, I have an opening for a consultation anytime today and will be glad to fit you in.
As Kyle from South Park is want to say, “I think we have all learned something here today. That even big shot companies with lots of money can screw up from time to time”
Since Jack and I respect the rights of photographers, we suggest that if you want to view the ad yourself, Google the words “Obama Weatherproof Ad” and you’ll find a plethora of examples.
Edward C. Greenberg
#1 by Neal Jackson on January 8, 2010 - 9:32 am
Well, Ed, I’d be happy to take the case of Weatherproof, even if they paid me in jungle raingear, including weatherproof camera covers. You can serve my client c/o me! (Oh, well, once you have been a lawyer, it’s hard to recover, so I’m off to the twelve-step Lawyers Anonymous meeting in a few minutes..this is hopefully a momentary relapse).
More seriously, I think this is an interesting question. If the photo had been taken BEFORE Obama was president or in the Senate, I think you would be technically correct. But I think that the courts (I would file a motion to remove this to Federal Court) would on a constitutional basis engraft an exception onto federal officials when operating in the public eye, even for commercial uses. Plain state statutory language would not trump the federal constitutional and statutory laws (including a plethora of them that deny copyright to the government and give the public access to images and governmentally-created works even for commercial purposes) and also the federal interest in the public right to images of our president.
But the key point of the post remains correct…where there is an issue about privacy laws, it is very wise to get a release. Who wants to pay a lawyer thousands of dollars (most won’t settle for charitable donations and in-kind contributions) and then win.
Now its off to the Lawyer Anonymous meeting.
#2 by admin on January 8, 2010 - 12:15 pm
Sounds like you are a recovering lawyer. If so, your post may presage a relapse into the dark world from which you had successfully escaped. You may want to call your sponsor.
But seriously and without getting too “law school” for our relatively normal readers:
The NY Civil Rights Law provides no protection against unauthorized use on the grounds that the subject is a public figure, office holder etc.. This is not a copyright case. The subject of this image, Mr. Obama does not have nor could claim any copyright interest in the image. Only in extremely rare cases, which typically involve celebrity spokesperson contracts, does a subject own any interest in the copyright of an image. Copyright laws are utterly inapplicable and irrelevant to the photo subject’s rights or available legal remedies. By the way NY Civil Rights Law claims are heard in Federal Courts every day of the week. They can also be heard in New York State Courts. (Depends upon which party lives or does business in what state and/or where the images were used). We are unaware of any federal law which trumps the New York Civil Rights Law. Additionally, The Lanham Act (trademark) is a federal law and again we are unaware of exceptions in that law in instances like this one for federal employees whether they be office holders or postal workers.
Generally speaking photos taken by government employees for government purposes typically fall into the public domain and/or are work for hire and thus the shooter has not copyright in them. That is not the case here. The image was shot (I understand by an AP shooter and/or AP has the ownership and/or licensing rights to the image) and therefore as far as I can tell from the press reports, the copyright holder may be filing against Weatherproof for copyright infringement.
Again this has nothing to do with the rights of a subject to be used against his/her will for trade or commercial purposes. So, even if a photo may is in public domain for copyright claim purposes that does not mean that the picture with say, Michael Jordan as subject of same could be used in an ad for say, Diet Coke without Michael’s consent regardless of the relative viability of any copyright claims which the shooter would love to bring. If its an AP photo things might be considerably “worser” for Weatherproof.
Betcha the ad comes down (if it hasn’t already). Proof in this case that Weatherproof can be made by Court order to take it down. Can you recall any other current or living President, Governor or Mayor used in an advertisement without their permission? If so, I’d love to hear about it.
Edward C. Greenberg
#3 by Louise St.Romain on January 8, 2010 - 2:54 pm
Well, it looks like Weatherproof is going to take the billboard down … in two weeks.
http://wcbstv.com/national/weatherfproof.ad.obama.2.1413670.html
Why do I get the feeling that Weatherproof knew that they were doing wrong and did it anyway, counting on the free publicity of the news articles that were bound to spring up?
#4 by James Lynch on January 15, 2010 - 12:57 pm
This seems to be a classic case of “it’s easier to beg forgiveness, than to beg for permission”.
#5 by WM Schenk on July 24, 2010 - 2:13 am
Is this Billboard so different than a deli posting photos of celebrities who have eaten there?
Wayne
#6 by admin on July 25, 2010 - 2:58 pm
First off, a billboard for a restaurant is a clear “adveritising’, “‘commercial” or “trade” use under any privacy/publicity statute I am aware of. A photo of a celeb or notable hanging on the wall of the restaurant itself would not necessarily qualify. Additionally, the dynamics are different. A celeb whose image/name is being traded on without consent on a billboard directed at prospective customers may bring a Lanham Act claim. This type lawsuit may be separate and apart from a privacy/publicity claim. In essence such a claim says, “If you wanted to use me and my reputation, name or image in this ad campaign I would have charged you X$$$. You did not even offer to pay me and without my permission used it” (See our Jack Scalia case on this blog.)
Celebs encourage and participate in the use of their image in a (ie) restaurant for their own purposes as well. Good will, pr, advertising a product or movie etc. So the celeb is rarely motivated to object to having his/her image seen by existing customers. Having said that, a few years ago a lawyer sent a letter to a well known NY restaurateur “Nino” requesting that he take down Chelsea Clinton’s photo which she gladly posed for with the owner. The lawyer wound up with egg on his face as it appeared that the letter went out without the approval of the Clintons. The request was “withdrawn” after much media coverage which generated great publicity for the restaurateur and his establishments. I spoke to him about this at the time and it was clear that the public was behind him %100. In the interest of fair disclosure, my wife and I (and most of the NY Yankees) frequent Nino’s NYC restaraunts fairly often – he is not a client.
Could a lawyer attempt to make a case of equivalency? Yes, conceivably. In 99% of the cases we can conjure it would be a stretch and distinctly unappealing to a judge or jury who ultimately would write a check if the lawyer tried and won such a case. The economics don’t work, the PR would be awful and the lawyer would need to be desperate for business. A take down letter to the restaurant would generally suffice unless, as in the NY case the restaurateur has many media connections and turned the matter around on the lawyer and the Clintons. I frankly don’t remember what Nino did with the picture but he succesfully made it quite clear that her picture on the wall of one his famous restaraunts was not a big deal to him and if asked nicely to take it down, he would have.
Here is a posting from the NY Post from 2007:
An Italian-restaurant owner – who’s in the soup for displaying a picture of him with Chelsea Clinton outside his Village eatery – said yesterday that he won’t remove the photo. “The picture stays – unless I hear from Chelsea directly,” said Osso Buco owner Nino Selimaj. Selimaj received a letter from former President Bill Clinton’s lawyer, Douglas J. Band, this week, asking the restaurateur to remove the photo from an outside menu case because Chelsea, “a private citizen,” never gave permission to have it displayed there. “While she may have dined at your restaurant, this does not serve as an endorsement,” the letter added.
The letter was stamped on top with a gold presidential seal and the letterhead Office of William Jefferson Clinton. Selimaj, who owns six restaurants in the city, said he was surprised to receive the letter. The photo, a simple shot of him and the first daughter, was displayed in the same place for the past four or five years, and it was taken, without protest, after Chelsea had a meal with a group of friends there, he said.
“I still don’t know the reason [for the letter],” said Selimaj, 50. “Just because she’s the president’s daughter? She’s been to the restaurant, enjoyed the food, came back.” Selimaj said if he takes the photo down, it would set a bad precedent for all the pictures he has taken with bold-face names. “We have Derek Jeter, we have Regis Philbin, we have Rudolph Giuliani, Danny Glover, Mariah Carey [and] ‘Sopranos’ [castmates],” said Selimaj. The legal letter has now joined the photo in the display case. “If it was any other president, honestly, I would go to court,” said Selimaj. “I happen to be Albanian, and he [Clinton] helped my people.”
Band did not respond to repeated requests for comment yesterday. Selimaj’s lawyer, Thomas M. Curtis, said restaurant owners throughout the city take pictures with their clientele and post them around their eateries all the time.
Ed
#7 by admin on July 29, 2010 - 3:14 pm
A follow up: I just walked past Nino’s restaraunt located on NY’s Upper East Side. A photo of Nino and Stevie Wonder is currently displayed outdoors next to the entrance along with another photo of former ball player, Boston Red Sox Manager and Yankee Coach, Don Zimmer embracing Nino – a die hard Yankee fan.
These are the current outdoor shots – they change from time to time. The inside of the restaurant features additional and “typical” celebrity images which help make up the decor. I told Nino that I have shots of Mel Brooks, Joe Namath, Lynyrd Skynyrd and Rachel Ray in my office. He seemed to care only about Rachael Ray. Wonder why?
Ed
#8 by mike on April 7, 2011 - 3:44 pm
Ed,
you and Jack did a class on Kelby Training about model releases, that i just watched. In the video it said that you were providing the 7 releases that you were going over but there was no link, where i can i find those and download them?
thanks,
mike
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