The Artful Jurist

Traveling about the streets of Washington these days, one can’t help but notice the plethora of retailers selling all sorts of merchandise featuring the image of soon-to-be new President Barack Obama. Mr. Obama’s face is peering out from T-shirts, posters, mugs…pretty much you name it and there’s an Obama souvenir with his image on it. There’s even Obama thong underwear being marketed. No kidding. I wonder how the new President feels about being in so many people’s pants. (Yes, I can feel it coming. Insert your own Bill Clinton joke here.)

Attempts at humor aside, this does raise a legal question about using someone else’s image for profit. There’s something known as the “right of publicity,” which allows each of us to manage the use of our own likeness and image for commercial gain. Try putting a Hollywood celebrity’s face on a T-shirt without first getting that celebrity’s permission, and you’re courting a potential lawsuit unless you can show that the T-shirt qualifies as protected free speech under the First Amendment.

Of course, unlike Hollywood celebrities who make their living by marketing their image and the persona that goes along with it, politicians have a different situation. Most politicians are more than anxious to have their image out and about as much as possible. So, even if he’s entitled under the law, it’s unlikely Mr. Obama will be bringing any lawsuits against the Obama thong sellers.