The Obama “Celebrity” Ad and the Right of Publicity

I. Introduction

With the 2008 presidential campaign expected to break spending
records, it is no surprise that both major political parties are
flooding swing-state airwaves with television advertisements.  While
recent elections have produced the much-discussed "swift boat" and "3
a.m." commercials, the McCain campaign took a unique approach with the
summer release of the so-called Barack Obama "celebrity" ad.[1] In
response to the enthusiasm generated by large U.S. and European crowds
at Obama's public appearances, the McCain campaign featured images of
Britney Spears and Paris Hilton in an ad that characterized Obama as
"the biggest celebrity in the world."[2]  Such unauthorized use of
celebrity images in political advertisements has been the subject of
recent debate, as any potential legal actions implicate the tension
between the right of publicity and the First Amendment.

II. Principles of the Right of Publicity

The right of publicity, sometimes referred to as misappropriation,
is a privacy tort that prohibits the use of one's name or likeness for
the benefit of another.[3]  Essentially, states grant individuals a
property interest in their name, likeness, and overall persona,
creating a right to control the use of one's identity.[4]  Right of
publicity claims are litigated under state law, and the majority of the
thirty states that recognize this cause of action require an infringing
use of one's name, likeness, or identity to be commercial in
nature.[5] 

As such, right of publicity claims often center on the unauthorized
use of a celebrity's identity in connection with commercial
advertisements or marketing campaigns.  By way of example, in White v. Samsung,
the Ninth Circuit Court of Appeals held that a Samsung VCR commercial
depicting a robot dressed to look like Vanna White infringed upon her
common law right of publicity.[6]

The right of publicity is not absolute, however, particularly with respect to uses by the media.[7]  The U.S. Supreme Court, in Zacchini v. Scripps Howard Broadcasting,
acknowledged a newsworthiness defense rooted in the First
Amendment.[8]  Under this exception, the use of someone's identity in
reports pertaining to the public interest is constitutionally
protected.[9]  The newsworthiness defense is broadly construed to
include any subject of the public interest, including political events
and social trends.[10]

The scope of the exception was illustrated in the recent dismissal
of a right of publicity claim against the producers of the film Borat.  In Lemerond v. Twentieth Century Fox,
a New York man sued the movie studio for the use of his image in a
thirteen-second clip in which he ran away from the title character
after Borat attempted to introduce himself on a city street.[11] 
Characterizing the film as a vulgar but ironic commentary on modern
American culture, the federal district court found the use of the
plaintiff's image to fit squarely within the newsworthiness
exception.[12]  In the eyes of the judge, Borat's exploration of American culture, and the bizarre and offensive reactions he received, were matters of public interest.[13]

As illustrated, the First Amendment offers strong protection for the use
of one's image in conjunction with political and social commentary. 
Often times, however, the line between expressive and commercial uses
is blurred, and certain forms of literary expression can be found to be
overwhelmingly commercial in nature.  Such a scenario played out in Doe v. TCI Cablevision.  In TCI,
a former professional hockey player named Tony Twist, who was
well-known for being the pre-eminent "enforcer" of his era, sued the
creator of the comic book Spawn after the introduction of a
villainous character named after the plaintiff.[14]  The court noted
that the comic book use of Twist's name had both expressive and
commercial qualities: it commented on the existence of enforcers at the
same time as it exploited Twist's prominence among hockey fans to make
money.[15]  In such circumstances, the Missouri Supreme Court decided
it must apply a "predominant use" test, wherein it determines whether a
specific use has a greater propensity to create artistic expression or
commercial gain.[16]  Emphasizing that the defendant had marketed Spawn
products to hockey fans and sponsored a minor league hockey event, the
court determined that the use of the plaintiff's name was more of a
commercial ploy than artistic or literary expression.[17]

III. The Lindsay Lohan Ad

Against this legal backdrop, an advertisement somewhat similar to
the McCain campaign's "celebrity" commercial recently created quite a
stir.  The American Beverage Institute (ABI), a trade group that
advocates for the interests of the alcohol industry, took out a full
page ad in the USA Today featuring Lindsay Lohan's mug shot
from her 2007 arrest for drunk driving and cocaine possession.[18]  The
purpose of the ad was to voice opposition for bills passed in several
states requiring that first-time drunk driving offenders install an
ignition interlock system in their vehicles.[19]  This device would
prevent potential drunk drivers from starting their car engines if the
breath test indicated a blood alcohol content of 0.15% or greater.[20] 
The ad included the words "Ignition interlocks are good for …" above
Lohan's image, and continued, "But a bad idea for us" below the mug
shot.[21]  The ABI defended the ad by saying it was attempting to draw
a contrast between first-time offenders and habitual drunken
drivers.[22]  Shortly after the ad was printed, a reportedly angry
Lohan hired lawyers to determine if a right of publicity claim could be
filed.[23]

For its part, the ABI claimed it was within its right to use the mug
shot, as it was publicly accessible and not being used for commercial
gain.[24]  Certainly, a debate concerning ignition interlock system
legislation is a matter of public interest, and it would be subject to
the broad newsworthiness exception.  Yet Lohan may try to argue that
the predominant use of her image is commercial, as the ABI's strong
ties to the alcohol industry creates a financial interest in the
matter.  Should they take the matter to court, her lawyers would need
to argue that the ABI's commercial gain is manifested in the continued
profits of the alcohol industry.  Even if a court is willing to accept
this argument, Lohan would have to demonstrate that the commercial
purpose supersedes the strong speech interest in this matter of public
interest.

IV. The McCain Ad

In comparison to the ABI commercial, the McCain ad seems even
better situated to withstand any potential right of publicity claims. 
In the midst of a close race for the highest political office in the
United States, the ad seeks to express a political viewpoint regarding
the perception of Senator Obama.  Any presidential campaign is a matter
of the utmost public interest, and subject to the highest protection of
political speech.  Thus, the depiction of well-known celebrities is
reasonably related to the McCain campaign's political message.

Furthermore, the "celebrity" ad does not involve any commercial
exploitation of Hilton and Spears' identity.  The commercial does not
solicit campaign contributions, and even if it did, a court may be
reluctant to equate campaign capitalization with the purely commercial
uses that you normally find in right of publicity cases.

V. Conclusion

Both of the aforementioned advertisements highlight the intersection
between the right of publicity and the First Amendment.  Many members
of the legal community continue to debate the viability of a potential
Lohan lawsuit.  Such a claim would have to be grounded in the right of
publicity, as a trademark action for false designation of origin would
likely fail because viewers would not be expected to think that Lohan
consented to a disparaging use of her identity.  For First Amendment
scholars, such a court battle could involve a very interesting analysis
concerning the balance between the speech interests and commercial
purposes of industry lobby groups. 

On the other hand, the McCain campaign ad is likely to receive less
legal scrutiny.  Despite the unusual nature of the "celebrity"
commerical, the strong protection of the First Amendment assures that
it will not attain a level of infamy greater than some of the other
noteworthy ads of presidential campaigns past.

Sources

[1] Jill Zuckman, McCain Ad Fights Rival's Celebrity Head-On, Chi. Trib., July 31, 2008, available at http://www.chicagotribune.com/news/nationworld/chi-mccain31jul31,0,4335927.story.

[2] Greg Sargent, New McCain Ad Attacks Obama As a "Celebrity", TMP, July 30, 2008, http://tpmelectioncentral.talkingpointsmemo.com/2008/07/new_mccain_ad_attacks_obama_as.php (last visited Sept. 29, 2008).

[3] Restatement (Second) of Torts § 652C (1977).

[4] White v. Samsung Elec. Am., Inc., 971 F.2d 1395, 1398 (9th Cir. 1992).

[5] National Conference of State Legislatures, State Right to Publicity Laws, http://www.ncsl.org/programs/lis/privacy/publicity04.htm (last visited Sept. 29, 2008). 

[6] White at 1399.

[7] Restatement (Second) of Torts § 652C cmt. d (1977).

[8] Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 569 (1977).

[9] Id.

[10] Lemerond v. Twentieth Century Fox Film Corp., No. 07 Civ 4635(LAP), 2008 WL 918579, at *2 (S.D.N.Y. Mar. 31, 2008).

[11] Id. at *1.

[12] Id. at *3.

[13] Id.

[14] Doe v. TCI Cablevision, 110 S.W.3d 363, 365 (Mo. 2003).

[15] Id. at 374.

[16] Id.

[17] Id.

[18] Associated Press, Lindsay Lohan Mug Shot Used In Liquor Industry Ad, CNN.com, May 2, 2008, http://www.cnn.com/2008/SHOWBIZ/Movies/05/02/lindsay.lohan.ap/ (last visited Sept. 29, 2008).

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Lindsay Lohan Furious Over Alcohol Ad, Daily Telegraph, May 3, 2008, http://www.news.com.au/dailytelegraph/story/0,22049,23638386-5013123,00.html (last visited Sept. 29, 2008).

[24] Associated Press, supra note 18.

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