Tuesday, February 17, 2009

Misappropriation of Name or Likeness - Obama Style

Okay, try not to get too bored here.

And those of you with law degrees, try not to get too picky.


The past four weeks spent locked in a court room have led me to uncharted territory with respect to the law. (Oh no, Here comes a legal related blog:)


Take for starters, the legal ramifications of using the Name or Likeness of another without their permission. (I had to do a bit of research for this subject - so bear with me)



Here's the background:


In most states, you can be sued for using some one's name, likeness, or other personal attributes without permission for an exploitative purpose. People will sometimes run into trouble when they use some one's name or photograph in a commercial setting, such as in advertising or other promotional activities. For example, if you took a photo of Madonna, pasted it on 5,000 water bottles and sold them for a profit (or a loss) you could be in a bit of trouble. The victim could then sue you for their share of the profits and for damages. Some states also prohibit the use of another person's identity for the user's own personal benefit, whether or not the purpose is strictly commercial. There are two distinct legal claims that potentially apply to these kinds of unauthorized uses:



(1) invasion of privacy through misappropriation of name or likeness ("misappropriation")

(2) violation of the right of publicity. (The "right of publicity" is the right of a person to control and make money from the commercial use of his or her identity.)



Because of the similarities between misappropriation and right of publicity claims, courts and legal commentators often confuse them.


So what's all of that legal Mumbo Jumbo have to do with Obama?



It's all about Shepard Fairey who is involved in a lawsuit that may be the precursor to subsequent suits being filed regarding the use of the likeness of Barack Obama. In a preemptive strike, the street artist Shepard Fairey filed a lawsuit on Monday against The Associated Press, asking a federal judge to declare that he is protected from copyright infringement claims in his use of a news photograph as the basis for a now ubiquitous campaign poster image of President Obama. see the story: Artist sues over Obama image

The suit was filed in federal court in Manhattan after The Associated Press said it had determined that it owned the image, which Mr. Fairey used for posters and stickers. The photo, of Obama at the National Press Club in April 2006, was taken for The A.P. by a freelance photographer, Mannie Garcia. According to the suit, A.P. officials contacted Mr. Fairey’s studio late last month demanding payment for the use of the photo and a portion of any money he makes from it.

I'll be following this case to see if Fairey's aggressive move pays off. I'm also curious to see if this "Name or Likeness" issue holds up for political figures holding a public office.

6 comments:

Chris said...

That wasn't boring at all! It's very interesting!

I will be interested to see how it all plays out as well.

Why does it seem like EVERYTHING in this world of ours just boils down to MONEY?

The way people claw and fight over it is so demeaning to us as a society.

Thanks for an informative post!

dickster1961 said...

Makes me wonder if the Obama water that UBM saw in the 7-11 was an "authorized" use of Obama's likeness

Sahar said...

IMO, Fairey should be sued. He's using communist derived influence along a stolen picture to line his pockets with money.

I could be wrong..but that's how I see it.

intrepidideas said...

Chris,

Glad you found it interesting. Yes, shamefully, it's usually about the money.


Dickster, oddly I wondered exactly the same thing.


Sahar,
Thanks for the visit and the comment. I'll have to give that some thought. I kinda thought he was just trying to save his own butt with the preemptive suit.

Jane Turley said...

Well I think it's kinda silly - the press agency owned the image? Ridiculous! Fairey's work may have been based upon that original photo (and let's face it, that would be extremely difficult to prove bearing in mind the millions of photographa taken - unless Fairey has admitted to it) But even then his work is clearly a new piece of art, unique in it design. Thousands of artists have done work like this over the years. I wonder if Andy Warhol had the same problem with his Marilyn et al pictures? And what about all the people who have copied Warhol's concept? Ludicrous. The press are getting to big for their boots. Did you hear about the Indian TV company that made a blogger remove their post and apologise for critising their coverage of the Mumbai attacks? Huh, me thinks it the press who need to act more reponsibly given their powers, which they so ften abuse with bias.

There, early morning rant over! I'm going to have a low cal chocolate drink and get in the mood for...football. (Groan.)Oh, to have daughters and go shopping.....

dickster1961 said...

Dickster, oddly I wondered exactly the same thing
The phrase "great minds" come to mind