Obama May Have Few Rights Over Use Of Name

There is no shortage of things bearing Barack Obama's name or likeness these days. Margaret Esquenet, an intellectual-property lawyer with Finnegan, Henderson, Farabow, Garrett & Dunner, says everybody has some control over whether their image can be used for commercial purposes, but politicians have the least right to control this of anybody.

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MELISSA BLOCK, host:

There's no shortage of things bearing Barack Obama's name or likeness these days. From visors to sneakers, golf balls to coffee mugs, you can get just about anything you want emblazoned with his face, name, or the inaugural seal. But is it legal? For that, we've asked intellectual property lawyer Margaret Esquenet to come by. Thanks for coming in.

Ms. MARGARET ESQUENET (Intellectual Property Lawyer): Thank you for having me.

BLOCK: And if I want to print up, you know, a onesie or thong underwear with Barack Obama's name or face on them - I've seen both of this on the Internet - can I do it?

Ms. ESQUENET: Well, it's an interesting question because on one hand, everybody has a right of publicity. That is that everyone can - has some control over whether their image can be used for commercial purposes. Can you sell a product with that image? On the other hand, politicians probably have the least right to control this of anybody. So - and Mr. Obama sort of positioned himself as the man of the people. I think he might have even a more particularly difficult time stopping some of this. It will come down to some extent whether the uses are covered by the First Amendment or whether they are really just strictly commercial uses, uses where his image is being used in such a way that people will assume he endorsed the product.

BLOCK: And has this been litigated before?

Ms. ESQUENET: It has in some circumstances. Giuliani tried to stop New York Magazine from using his name on the side of a bus.

BLOCK: This was when Rudolph Giuliani was mayor of New York City.

Ms. ESQUENET: Exactly, exactly. And he lost that case. The Southern District of New York said that this was fair game and that - I believe the quote was that to the extent that the mayor found himself dressed in drag on "Saturday Night Live" just the week before, that this use of his name wasn't going to make anyone believe that he endorsed the product. It was simply a way of showing New Yorkers that New York Magazine was in touch with what was going on in New York.

BLOCK: We were reading about these issues today in the Washington Post in Al Kamen's column. And he was talking about the new incoming White House counsel, Gregory Craig, and how it will be his job to try to stop the exploitation of the new president's image. Would that really be his purview if ever they were mentioning, you know, Barack Obama chocolate chip cookies and chocolate bars.

Ms. ESQUENET: Well, in my opinion, I think it would really depend on the nature of the use and that they would probably have to be very targeted in making sure that they're only going after the most egregious cases where people really might believe that Obama is endorsing that product. Or that more importantly, since we're talking about White House counsel, so a government job on some level, that it's - that people think that the government or the president is endorsing that product.

I think it needs - it will need to go beyond the commemorative plate and to something that - where almost a level of fraud would be involved, that consumers would be defrauded by believing that they're buying something endorsed by the president.

BLOCK: And what might that be?

Ms. ESQUENET: You know, I was thinking of examples on my way here, and I was trying to figure out what could it be that somebody couldn't argue has First Amendment protection on it. You mentioned onesies. Would that be covered? And I think, well, a change for Obama.

(Soundbite of laughter)

Ms. ESQUENET: That was my first thought. I think to some extent you can make legitimate arguments about a lot of products that they are in fact actually political commentary, either excited about the incoming president or somehow critical of the incoming president. I think my - where I would come down is maybe food products. If somebody is saying, well, Obama eats this candy, so you should eat it, too, that sort of thing might be of particular interest to Obama himself.

BLOCK: Is there a separate issue with the White House seal or the presidential seal?

Ms. ESQUENET: There is a separate issue with the White House seal and the presidential seal. Those are governed by criminal statutes. It's not part of copyright or trademark law or right of publicity law, but actual criminal statutes. And at that point the government looks for fraud. Are you trying to show or imply that you are sponsored by the government or that you were somehow speaking on behalf of the government? And the standard for enforcing that criminal statute is really your intent and how people will perceive the use of the seal.

BLOCK: So, if I'm hearing you right, at the end of the day, we do not think that the incoming White House counsel, Gregory Craig, is going to be spending hours and hours every day writing cease and desist letters to T-shirt manufacturers and onesie makers and coffee mug producers.

Ms. ESQUENET: I'd be very surprised if that turned out to be a large portion of his White House duties. I think that they would be looking for the most egregious cases where the consuming public might really believe the president or the government is endorsing a product, whereas that's not the case.

BLOCK: Margaret Esquenet, thanks for coming in.

Ms. ESQUENET: Thank you.

BLOCK: Margaret Esquenet is an intellectual property lawyer with the law firm Finnegan, Henderson, Farabow, Garrett, and Dunner here in Washington, D.C.

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