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.