Malia and Sasha Dolls: A Right to Privacy and Right to Publicity Issue

Hello!

I hope all is well. Last week Ty Inc., the maker of the Beanie-Baby toys, introduced two dolls named Marvelous Malia and Sweet Sasha. The company stated these dolls were modeled after President Obama's daughters. Specifically, the company introduced the dolls to celebrate the new historic First Children. However, a few days after the debut of the dolls, First Lady Obama released a statement that she did not approve of the company's use of her daughters' name or likeness for marketing or commercial purposes. The company immediately retracted its earlier statement that the dolls were modeled after Malia and Sasha Obama.

So the questions are:

Do the Obama children have a Right to Privacy?

More importantly, do they have a right to control the marketing and commercialization of their likeness and image?


Right to Privacy.

There are four basic Rights to Privacy:

1. Protection from unreasonable intrusion upon the seclusion of another. For example a home or a car,

2. Protection from appropriation of a person's name or likeness (Right to Publicity). For example using a person's name or image on a product or service without their permission,

3. Protection from publication of private facts. For example, income tax data, family quarrels, medical treatment, school records, etc.,

4. Protection from publication of information that places a person in a false light.

Prosser, Restatement 2nd of Torts.

However, Public Figures do not have a Right to Privacy. Specifically, the law explains that where public figures are concerned, the newsworthiness or public disclosure of private information outweighs the right to privacy of the public figure. Why? These public figures have held themselves out for positions of public trust. We elect public figures to govern us and make decision regarding rules, laws, and regulations that affect our daily lives. So as citizens we need to know the character and factual activities of that public figure. However, the private information disclosed must be true and reported or printed without malice. So essentially, President Obama does not have a Right to Privacy. We are entitled to know as much information as possible about him and we are allowed to use his name or likeness, without his permission, on T-Shirts, Figurines, Books, and the like.

But it has been argued that children of public figures are private citizens and therefore enjoy all the four Rights to Privacy listed above. This fact is debatable. Some would argue that as children of the President, the Obama children lives are of public interest. Specifically, that they do have some level of power and influence on Society as daughters of the President. Children do want to buy the clothes they wear, copy their hairstyles, and attend a Friend School. Others would argue that the Obama themselves thrust their children into the public spotlight during the campaign. During the campaign we learned intimate details of their lives.

However, as minor children they do not have any control or power over how they are placed in the public arena or how they are perceived. So if they are private citizens, they have a Right To Privacy and ultimately a Right to Publicity. They should have control over how their image or likeness is used by others in the marketplace. In addition, they should have the right to profit monetarily from the marketing and commercialization of their images.

Regardless of whether we believe the Obama children are private citizens or public figures, the Ty Company should have approached the Obamas first before manufacturing and modeling dolls after the Obama Children. I think this simple approach would have saved both Ty, Inc. and the Obamas a lot of embarrassment.

I welcome your thoughts!

What PR Professionals Can Do to Protect their Intellectual Property

Hello!

Welcome Back! This year has started off with a bang and I have been busy. Recently I wrote a guest article on PR Professionals and Intellectual Property Law. This article helps PR practitioners identify their intellectual property and gives them practical tips on protecting it. Check out the article here. This article was written for Robin Caldwell of The J Standard PR Firm. She is an industry legend and is Amazing.

Introducing a new product online? Protect yourself against false advertising claims

Hello!

I hope all is well. Today I am going to discuss false advertising. Specifically, if you are a newbie to online advertising, how do you protect your business against false advertising claims?

Federal law prohibits unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce. 15 U.S.C. 45(1) Specifically, the Federal Trade Commission Act defines a false ad as one which is "misleading in a material respect." Sec. 12 FTC. Material misleading ads include:

1. false written or oral statements regarding a product or service;
2. misleading price claims or sales;
3. sale of hazardous or defective products or services without proper disclosure;
4. failure to perform promised services; or
5. failure to meet warranty obligations.
Firestone, 81 F.T.C. 398, 451-52 (1972),

When advertising or endorsing a product or service, a retailer or advertiser must be:

1. truthful at ALL COST
2. not deceptively misleading regarding the capabilities of a product or service, i.e., no embellishment
3. not unfair.

Of course, whether an advertiser's claim that a product will achieve the results advertised in some instances, may be subjective. For example, a face cream may achieve the desired results for one customer but not for another customer. The customer who did not achieve the results advertised may assert a claim for false advertising against the advertiser. How can an advertiser avoid such a claim?

An advertiser can protect itself from such a claim by placing very prominent disclosures on the advertisement. A disclosure for skin care may read like this:

Through clinical testing of "Said Product" skin achieved a more balanced and even skin tone within 12 weeks of use. However results may vary.

As stated, the disclosure must be prominent. So do not use small text and make sure the disclosure is in close proximity to your claim.

Although disclosures are a great defense against a frivolous false advertising claim, making purposeful false statements in ads can trigger legal action.

I hope this information was helpful. Leave a comment if you have any further questions.

Best

Happy New Year!

Hello!

Happy New Year! I hope your holiday break was wonderful! I am so excited to start the New Year. This is a very exciting time for Intellectual Property Law! There are some fantastic conferences on legal issues in new media that I am attending this year. Also I am very curious about the effect the newly created Intellectual Property Coordinator/Czar will have on IP issues in this new digital age.

In March I am attending another Practising Law Institute Conference which will focus on Intellectual Property law issues in Web 2.0. Specifically, the conference will cover:

Legal issues using mobile devices
Liability issues in social networks and blogs
Use of key words and meta-tags. I discussed these issues here.
The future of advertising and product placement.

I am particularly interested in the future of advertising and product placement as it relates to advertisers using social media and various new media platforms. I am so looking forward to this conference and can't wait to report back to you (my readers) about the cutting edge legal issues affecting your blogs, social networks, and other new media platforms.

Thank you for continually reading and supporting IP LAW 101. If there are any other topics you would like me to discuss, or if you have any questions, please let me know.

Best!