Sunday Mailbag- Right of Publicity?

Q: I read one of your blogs from a longtime back (Caricature and the Right of Publicity – August 15, 2006) about Right of Publicity issues with caricatures on products. I wondered if you have any additional insight into these ROP issues?

I am looking at producing some novelty items of political satire using caricatures of the current President and his administration and I am finding manufacturers of my intended products declining any reproduction of the President (even political satire caricatures) for fear of retribution by his team of lawyers.

I have read a bunch of the case law on the subject and I understand the issue of the means and method of the product in its purpose related to the satire…which I believe we have a strong, conforming argument, but I wondered in your capacity and experience what your take might be.

A: For those who do not know what this refers to, “right of publicity” are laws that pertain to a celebrity’s right to protect the profitability of their own image.  Briefly it allows celebrities to stop/prevent others from using their image in products, advertising or other forms of media without their formal permission. A defendant need not even be selling the infringing image… it’s enough to just be using it as it could potentially be damaging the celebrity’s ability to sell a similar product or to otherwise profit from their image. Fair use (in news articles for example) and parody are exceptions. Follow the link in the next paragraph to get more details.

I did do a recently updated version of that post you refer to, but beyond that I don’t have much in the way of additional insights into right of publicity. It is still at a state level in terms of law and how those issues are handled is different in different states. It’s complicated.

That said, politicians usually forgo any right of publicity claims because as public servants they expect public criticism and just shrug off parody as part of the job…

… unless you are the thin-skinned manchild our current president is, that is.

What you are experiencing is not so much concern from manufacturers that you are going to violate Donald Trump‘s ROP, but the fact that many cower in fear of his tantrums and blind legal retribution of anything he considers critical of himself. Never mind if he has a legal leg to stand on (and if you are criticizing his performance as president he does not. Despite his best efforts we still enjoy freedom of speech in this country), it’s the fear of what it will cost to defend a lawsuit that probably has manufacturers not wanting to take the risk (or maybe the fear of an IRS audit!). I’ve heard reports of similar problems with parody-related art (parody of anything, not just Trump) on print-on-demand sites like Cafepress and Zazzle. You may have a very solid argument that what you are doing is parody and protected by fair use laws, but they are free to not take the risk. That’s their prerogative.

Anyone can sue anyone for anything, regardless if they really have a case or not. People and companies with deep pockets can use the costs associated with defending such a lawsuit to get a potential defendant to agree to do what they want just because of the threat of the legal fees it would take to prove themselves in court. There’s nothing new about that… entities representing Elvis, Marilyn Monroe, Disney and Lucasfilm are notorious for aggressively going after any use of their clients/characters images, even if they are obvious parodies. It’s a little unusual that a politician would be a concern, but even that is not unprecedented. In 2004 then California Governor Arnold Schwarzenegger filed a lawsuit against a toy manufacturer who had made a bobblehead of him (in a business suit but with a gun and other props) as part of a series of political bobbleheads. Ahnuld was the only politician to object legally. That lawsuit was settled out of court, but it is interesting that the company still got to make the bobblehead. They just had to lose the gun, which I assume was because that element did not pertain to Schwarzenegger’s governorship but to his movie career, and an undisclosed amount of the profits had to go to a Schwarzenegger non-profit after school program.

Thanks to T. Tully for the question. If you have a question you want answered for the mailbag about cartooning, illustration, MAD Magazine, caricature or similar, e-mail me and I’ll try and answer it here!