Dear Doc:
I have heard that there is an intellectual property right called the “right to publicity.” What is that and how does it work?
Signed,
Prime Woman
Dear PW:
Here is a HYPOTHETICAL that will answer your question about publicity rights…
President-Elect Donald Trump will try to sell just about anything he can put his name on. Hats, mugs, steaks, water, “university” degrees, golden sneakers, bibles, guitars, “gold” coins, flags, signs, Christmas ornaments, golf balls, airlines, watches, energy drinks, stuffed animals, trading cards, NFTs, bobbleheads, barware, wine, candles, the list goes on and on. He has every right to do so because it’s his name and likeness being used to hawk this merchandise. Mr. Trump may authorize the use of his image however he wishes.
Now, Mr. Trump is selling perfumes and colognes. He posted this advertisement on social media:
The perfume is $199. So what does this have to do with the right to publicity? According to USC Law School professor Ben Meiselas, Dr. Jill Biden, our current First Lady, should sue Donald Trump for $100,000,000.00. Moreover, Professor Meisalas, an expert in this type of law, also known as “name, image, and likeness law,” said she would win in an open-and-shut, slam-dunk case.
You see, Mr. Trump has misappropriated the name, image, and likeness of Dr. Jill Biden to sell his Trump Fragrances. When someone does that without permission, that is a violation of her right to publicity. Every state recognizes that right, either by law or by common law. There is even a federal law, a section of the Lanham Act. Dr. Biden lives in Delaware, which recognizes, “appropriation of some element of plaintiff’s personality for commercial use” as a tort. (Barbieri v. News-Journal Co).
To prevail in a claim for violation of publicity rights or misappropriation of name, image, or likeness, Dr. Biden must prove four elements: (1) that Trump used her name, image, or likeness; (2) he did so without consent; (3) he used it for commercial purposes (e.g., advertising, product promotion); and (4) he caused Dr. Biden harm or potential economic loss. In this matter, Check, Check, Check, and Check.
Moreover, Donald Trump didn’t just use a photo of a person resembling Dr. Biden. He used an actual photo of her and added text to suggest that she likes or endorses the product! This translates into a claim that he acted intentionally, wantonly, and maliciously toward Dr. Biden in his misappropriation of her likeness. Doing so could expose him to both compensatory damages (whatever he makes selling his fragrances) and punitive damages, which could be a multiple of the compensatory ones, because the amount of punitive damages awarded is supposed to both punish bad behavior and deter future bad behavior and may be related to the net worth of the defendant.
Postscript:
But wait, Doc, I hear you thinking, the Supreme Court recently gave presidents “absolute immunity,” so this lawsuit will never happen. Nope! You see, Mr. Trump ran this ad while he was only a private citizen, and not yet president. The sale of perfume is not an “official act” of a president in any event, and the lawsuit will be civil, and not criminal. So no immunity.
Have a question about the right of publicity or other intellectual property? Call the attorneys at LW&H…they’re famous for doing this kind of legal practice!
Until next month,
The “Doc”
— Lawrence A. Husick, Esq.