Stuart Freen is a JD candidate at Osgoode Hall Law School.
Last week, U.S. President Barack Obama found himself in a strange place: Plastered across a 30-foot billboard in Times Square, hawking rain coats. The Weatherproof advertisement depicted a bold-looking Obama walking along the Great Wall of China with his hands dug into the pockets of a black jacket with the tag line “Weatherproof: A Leader In Style”. Although the photo was properly licensed from the Associated Press, Weatherproof did not clear the ad with the White House. The billboard was eventually taken down a few days later (at the White House’s request), but the whole situation raises some interesting issues around personality rights, particularly for extremely public figures like the President.
“This ad is clearly misleading because the company suggests the approval or endorsement of the president or the White House that it does not have,” said one White House aide to the New York Times. Yet this is not the first brand that has tried to associate itself with Obama. Vancouver-based yoga clothing company Lululemon recently ran an “Ombama” magazine ad featuring a cartoon Obama sitting in the lotus position. Similarly, the Vatican has gone to great lengths to try to control the use of the Pope’s likeness in advertisements and merchandise. And, of course, there was the infamous Shepard Fairey “hope” poster.
Celebrities in Ontario are generally protected by the appropriation of personality tort. Cases like Krouse v. Chrysler Canada Ltd. et al. (1973), 1. O.R. (2d) 225, 40 D.L.R. (3d) 15, 13 C.P.R. (2d) 28 and Athans v. Canadian Adventure Camps Ltd. et al (1977), 17 O.R. (2d) 425, 80 D.L.R. (3d) 583 (Ontario High Court) established that celebrities have a proprietary right in the marketing for gain of their personality, image and name. Comparable rights of publicity exist in most other common law jurisdictions as well.
However, the line gets blurry when the advertisements don’t actually suggest that the celebrity is endorsing the product. In Krouse, for example, a car company used a photo of the plaintiff (a football player) in its promotional materials, but only in the form of a generic football action shot. The plaintiff’s face was not shown and he was identifiable only by his jersey number. In Athans the defendants used a drawing of the plaintiff (a famous water skier) in their summer camp pamphlets but made no indication regarding the plaintiff’s actual endorsement or involvement in the camp. In both of cases it was unclear whether there was an express intent to misappropriate the celebrity’s likeness for profit.
Things get even hazier with uber-public figures like Obama and the Pope, who to some extent live and work constantly in the public eye. It could be argued that these figures are so ubiquitous that they really have no expectation of being able to control and commercialize their images. In the Weatherproof ad there was no indication that the President was actually endorsing the jackets, nor does the ad even use his name. Furthermore, there is probably very little expectation on the public’s part that the President or the Pope would ever endorse a clothing brand. Most Americans would probably not assume that their president was acting as a Weatherproof spokesman despite his appearance in their ad. These factors make it difficult to see where exactly the misrepresentation or the damages were in this case.
Rights of personality remain a tricky issue, even more-so for the super-famous and political figures. In this case it appears the White House managed to use their political muscle to get the ads taken down, but Weatherproof certainly got more than their share of publicity out of the whole stunt. Meanwhile, here in Canada the only ads our Prime Minister has been in lately are Liberal attack ads. Stephen Harper: A follower in style?