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We have nothing to fear but…a lawsuit?

by Tamra Knepfer, SVP, Greenlight 

ContractNow that President Donald Trump has settled into the Oval Office, it is interesting to see how the current political climate has impacted the state of advertising. Even for his swearing in ceremony, Trump used Facebook ads to offer inauguration tickets. When the leader of the free world has a purely business background and has consistently used his name, image, and reputation to advertise products or services, it is an appropriate time to explore the subject of politicians, advertising, and the risks of using a politician’s persona, name, likeness, or image without proper approvals.

We are all familiar with the annual President’s Day sales ads featuring actors dressed as Abraham Lincoln and George Washington. Since those two revered political figures died so many years ago before the ubiquity of advertising in our society, it is not likely anyone thought to use them in an advertisement during their lives. It is also very unlikely any living descendants would have any right to object to their relatives’ being used in such a manner today. Laws governing the promotional rights of deceased people vary by territory—and by state in the U.S.—but would not apply to anyone who passed away before the start of the 20th century.

Times are very different now. Yes, Donald Trump’s career as a pitchman preceded his recent entry onto the political stage, but one can imagine that as his presidential term continues, the brands associated with Trump will continue to profit or suffer from that association. Additionally, it is more important than ever to have proper approvals in place for any brand to use his name, likeness, or image.

jfk1_high-320Once the age of advertising began, the potential arose for famous politicians to be used to promote products. A newspaper ad from 1927 uses a childhood photo of Teddy Roosevelt to promote children’s furniture, likely done without the consent of his estate. President Ronald Reagan famously was a pitchman for Chesterfield cigarettes, although this was before he became governor of California. More recently in 2009, President John F. Kennedy’s name, likeness, and voice were used in an advertising campaign for Omega watches. Permission was granted by the JFK Presidential Library Foundation at that time, but it was never revealed what—if any—compensation was given by Omega.

There are risks involved in using celebrities in advertising, yet the pervasiveness of celebrity advertising in today’s world is proof it’s worth considering for any brand. This also holds true if a political celebrity is featured.

Presidential2_1554619fTypically, no high-ranking political figure in office would agree to appear in an advertising campaign, given the numerous conflicts of interest, but that may not deter all potential advertisers. One of the most egregious cases of an unauthorized use of a sitting political figure for advertising was Weatherproof Garment Company’s billboard in Times Square showing former President Barack Obama wearing one of the company’s products. Upon learning of the unauthorized use of the former president’s image, the White House issued a statement saying: “The White House has a longstanding policy disapproving of the use of the president’s name and likeness for commercial purposes. This ad is clearly misleading because the company suggests the approval or endorsement of the president or the White House that it does not have.”

From a purely legal standpoint, it seems to be a bit unclear where First Amendment protection ends and politicians’ rights to control their images begin. It is very likely most politicians would continue to assert they retain their right of publicity (the right to control how their persona is used for commercial purposes) even while in public office. President Obama would probably have had a strong case if he sought legal recourse to stop the ad or seek damages in the Weatherproof case, but his legal team might very well have advised not to do anything beyond the statements expressing their disapproval unless the use was blatantly offensive or he needed the money from a settlement. A legal battle would only provide more publicity value to the offending party.

A company cannot, however, assume there will be no consequences from such an unauthorized use. In another widely publicized case, former French President Nicolas Sarkozy and his wife Carla Bruni, a former model, sued the Irish airline Ryanair over a picture of the couple used in an ad for the airline. The couple won their case and Ryanair was forced to pay €60,000 to Bruni and €1 to Sarkozy in symbolic damages, which exemplifies that Sarkozy did not want to accept a larger fee for damages while in office.

It is imperative for marketers to clear the rights of political figures, especially if they are no longer in office. While some smaller, less cautious companies might feel all publicity is good, most companies these days will want to avoid bad press, including the wildfires that can spread on social media and the associated legal costs or costs to change its campaign. It will be interesting to see how Trump’s presidency pans out and the continued impact it will have on the advertising industry as a whole. Stay tuned!

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