For the past year and a half, one political figure has evoked much publicity around the world that very few celebrities or politicians have enjoyed during their whole life. This political figure is the newly elected U.S. president, Barack Obama. The Obama craze has resulted in, what Megan Boler calls, a ‘merchandising mayhem’. In the U.S., Obama’s face, name and memorable quotes are put on calendars, mousepads, ‘I kiss Obama’ chapstick and even Obama inauguration undies. In Canada, Obama-related products include doggie sweaters, oven mitts, and baby blankets.
This Obama merchandization has raised an interesting issue, namely, to what extent politicians can protect and control the use of their image. A recent blog has addressed the issue from the perspective of U.S. law. While it is clear that most states afford politicians a right of publicity that allows them to control the use of their image, the extent of protection is unclear. According to the US intellectual property professor, Rebecca Tushnet, politicians rarely exercise their right of publicity to stop the production of merchandise that display their image. Therefore, the content and remedies of the right of publicity in this context remain legally untested.
In fact, a few commentators have hypothesized as to whether the Obama family could and would take legal actions against the company Ty (the company started selling Sasha and Malia dolls that resemble the First Family’s daughters). Although Ms. Obama’s press secretary had clearly stated that it is “inappropriate to use young, private citizens for marketing purposes,” it remains unclear whether any legal actions would be commenced.
French politicians seem to be more active in asserting their publicity rights. Recently, the French president Nicolas Sarkozy, tried to stop the sale of a voodoo doll that closely resembled the president. The doll is emblazoned with some of Sarkozy’s controversial quotes and allows people to stick needles in it. A Paris court of appeals refused to ban the production of the doll but forced its producers to put on a label describing the doll as offensive to the French president. Thus, French law seems to afford more clarity on the remedies politicians have against producers of merchandise that use their image.
In Canada, politicians have different causes of action that allow them to control and protect their image. One alternative is the common law tort of misappropriation of personality, which is the Canadian equivalent of the U.S right of publicity. Other alternatives include passing off, defamation or breach of privacy. Canadian politicians have often availed themselves of one or more of these causes of action. Political figures have often used such causes of action against other politicians or the media for false statements or misrepresentation.
For example, in March last year, Prime Minister Stephen Harper launched a lawsuit against the Liberals for defamation and misappropriation of personality. At issue was a tape recording of an interview with Harper by Cadman biographer Tom Zytaruk. Harper’s lawyer argued that the Liberals “have used the edited and doctored audio tape to wrongly usurp the plaintiff (Harper) of his right to control his own image and to portray the plaintiff in a false light.”
However, the different causes of actions that allow a politician to control his or her image have rarely been utilized to stop the production of merchandise that use politicians’ images for commercial gain without permission. Thus similar to the U.S. law, Canadian law in this context remains untested.