Obama as coat model? Not so fast, Weatherproof

When President Obama wore a Weatherproof-brand jacket to the Great Wall during his November visit to China, the clothing designer couldn’t resist the marketing opportunity. A billboard displaying the chief executive’s dapper image appeared over New York’s Times Square during the holiday season.

First Lady Michelle Obama also unwittingly lent her image to a promotion -- a campaign by People for the Ethical Treatment of Animals who added her to a montage of famous females who shun wearing fur.

The Obamas are among the latest of the global glitterati to assert their legal right to control their public image. Most states now have laws preserving the commercial potential of the prominent and protecting the privacy of those who don’t want their wardrobe choices or political positions cast as endorsements.

Both Weatherproof Garment Co. and PETA have agreed, without the pressure of litigation, to cease unauthorized use of the First Couple’s images, heeding the courts’ increasing tendency to side with celebrities when others seek to profit from their fame.

Intellectual-property lawyers and law professors say the protection known as the “right of publicity” belongs to everyone, famous or not.

Most lawsuits charging expropriation, however, tend to arise from those in the public eye.

Millions of dollars can be at stake for celebrities and sports stars who don designer clothing or watches, projecting their approval to fans and the public. Unauthorized use of their images to suggest endorsement of other products can diminish a star’s ability to charge for a plug, said Pepperdine University law professor Ed Larson.

Courts have tended to make a clear distinction between outsiders cashing in on a celebrity’s appeal and free-speech expressions that satirize the famous or represent them in a “transformative” way, like Andy Warhol’s portraits of Marilyn Monroe and Mao Tse-tung seen as creative works in their own right.

“You see expansions and contractions in intellectual-property law,” said Jack Lerner, director of the USC Intellectual Property and Technology Law Clinic, noting that more-detailed and comprehensive copyright laws have led to greater expectations among rights holders to control and benefit from their images. “But we’ve got to be able to talk about celebrities freely, given the time we spend talking about them. If publicity rights start to encroach on our discourse, then it could really be problematic” for free speech.

Fame crossing from personal property to public interest was at issue in Paris Hilton’s lawsuit against Hallmark Cards Inc., in which the socialite accused the greeting card company of making money off her trademarked catchphrase, “That’s hot!” A birthday card spoofing Hilton’s unfamiliarity with work as a waitress remains in litigation as to whether her fame is fair game for commentary.

Catchphrases have earned protection in other instances. The U.S. 6th Circuit Court of Appeals ruled in favor of talk show host Johnny Carson in 1983 when Here’s Johnny Portable Toilets Inc. was sued for commercial exploitation of the entertainer’s signature introduction.

The right of publicity has also been recognized in celebrity look-alike and sound-alike promotions. Singer Bette Midler won a judgment against Ford Motor Co. when someone who sounded like her sang for a car commercial. A California state court ruled in 1988 that Ford “appropriated what is not theirs” when it deliberately imitated the famous voice for a sales pitch.

Publicity rights, first recognized in a 1953 dispute over players’ photographs on baseball trading cards, vary from state to state. The lack of a national standard for parsing free speech and commercial expropriation has led to a haphazard mosaic of rights and protections.

While most states recognize a right of publicity, only 20 have statutes defining it. The concentration of celebrities, socialites and politicians in New York and California has fostered the strongest protections and most consistent case law in those states.

Sitting politicians, particularly presidents, seldom sue to protect themselves from unauthorized use of their images, preferring the quiet power of their offices to dissuade trespassers.

But there are exceptions. Gov. Arnold Schwarzenegger has twice sued for misuse of his image, first against an Ohio auto dealer invoking his “Terminator” movie persona and more recently against the makers of a bobblehead doll lampooning his political role. He lost both times.

“The 1st Amendment allows you to poke fun at them any way you want,” said attorney William Coats, who specializes in intellectual property litigation.

Some legal scholars suggest the claimed right of publicity has been extended too far.

“Especially once one gets out of the pure commercial advertising context, like the sale of what would be speech products -- prints, cards, graphic novels -- I think it’s a bad idea, not necessary or justifiable and it violates the 1st Amendment,” said UCLA law professor and libertarian blogger Eugene Volokh.

He pointed to a 1982 case in Georgia in which the state’s high court recognized an exclusive right of Martin Luther King Jr.’s estate to produce and market memorial busts of the late civil rights leader.

In the more recent cases, neither of the Obamas was known to have hinted at legal action, but both got the usurpers of their images to back down.

“Although Weatherproof believes that it had sufficient legal basis for displaying the billboard, it will be replacing the billboard in order to cooperate with the request of the White House,” said company President Freddie Stollmack.

PETA President Ingrid Newkirk also demurred without conceding any wrongdoing in including Michelle Obama’s image in the “Fur-Free & Fabulous” ads showing her along with Oprah Winfrey, Carrie Underwood and Tyra Banks.

“Following the White House’s plea, we have today instructed the advertising company to pull the campaign. We have done so in order to show good faith,” Newkirk said.

But she also called on the chief executive to go after Ringling Bros. and Barnum & Bailey Circus with equal vigor to protect their new elephant offspring -- “Baby Barack.”

carol.williams@latimes.com