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!