Our Woody Allen example would seem to suggest, that some elements of the First Amendment bar are bent on enticing garmentos to gamble their money so that lawyers can live in luxury while playfully testing the boundaries of commercial free speech. Obama hasn't sued over the coat ad -- not yet anyway -- so there can be no certainty how a court would rule on whether the ad violated his rights. Nevertheless, the coat manufacturer, while taking its sweet time, took down the advertising billboard at the request of the White House after it objected to the ad, so we may fairly surmise that both the president and the manufacturer sensed the legal issues it raised, and that neither side to the dispute acted gratuitously.
The ad indicates the nature and quality of the garment Weatherproof sells, which is hardly surprising, as that is the goal of all commercial advertising. So, why should Weatherproof have to pay Obama a thin dime to make gazillions of dollars off of his image, and why shouldn't Weatherproof have the absolute First Amendment right to enjoy such a financial bonanza? After all, Obama didn't make that coat; he just wore it. He was photographed wearing the coat because he wanted to be photographed. That's what a "photo opportunity" is for.
On the other hand, Obama’s willing pose for this photograph hardly necessitates that he consented to its use in Weatherproof's commercial advertisement. Why should this garment manufacturer make a bundle off of the president’s image to sell his coats without the president's permission, and without compensating him, not even to the extent of offering to donate coats to the homeless and needy in the dead of winter? Why, in other words, would the White House find this advertisement objectionable, and why would the manufacturer see the sense in removing it from public view as soon as the White House protested?
President Obama is both an actor on the public stage and a symbol of his office and whatever additional values people may associate with him. While still an elected official in Illinois, he exploited his national renown and the commercial value of his identity as the author of two successful books and their ancillary audio adaptations. After leaving the presidency, Obama may do the same, as have all recently retired presidents. Does he retain any valid interest, let alone right, to control the circumstances in which his image appears, or have they evaporated for all time?
Under New York’s Civil Rights Law jurisprudence in both the state and federal courts prior to Groden v. Random House, Inc., et al., whether a plaintiff is a public figure or a private figure is irrelevant to the analysis. Titan Sports, Inc. v. Comics World Corporation, et al., 870 F.2d 85 (2nd Cir. 1989); Brinkley v. Casablancas, et al., 80 A.D.2d 428, 438 N.Y.S.2d 1004 (1st Dept. 1981); Reilly v Rapperswill Corp., 50 A.D.2d 342, 377 N.Y.S.2d 488 (1st Dept. 1975). The statute affords Mr. Obama, or almost any other plaintiff for that matter, the right to conduct and present himself to the public in such a manner as to preserve the attribute of dignity. This concept would seem to apply even more forcefully when the dignity of the individual is inextricably intertwined with the dignity of the highest elective office in the United States.
I propose to analyze the Obama ad within the same framework utilized by Judge Jon O. Newman to justify his Opinion in Groden v. Random House, Inc., et al., where Robert Groden's photograph was used without his consent in a print advertising campaign for the book, Case Closed. This is difficult, however, because totally absent from Newman's opinion (as well as that of the lower U.S. District Court for the Southern District of New York) is any weighing of the competing interests involved. For example there was no consideration of Groden's recognition value to Random House, or his interest in protecting the salability of his own competing book and video products, which Newman deliberately omitted mentioning. There was neither any nod to Groden's interest in freedom from the mental distress of being associated in the public mind through advertising with the unflattering work of another author that he did not endorse, nor even lip service paid to a person's right to control the circumstances or terms under which he may exploit his name and likeness when another seeks their use in an advertisement. In Jon Newman's universe, there were no competing interests; he is a skillful writer, as may be expected of Earl Warren’s former senior law clerk, but his Opinion merely feigned at evaluating Groden’s arguments and was, in reality, completely one-sided. As I will demonstrate in the posts to follow, his use of case precedents was also egregiously dishonest. So, in comparing and contrasting the Obama and Groden ads, I must take a different tack.
Newman's Opinion in Groden struck three main themes: (1) the fact that the assassination of John F. Kennedy is a "matter of public interest"; (2) the "emotional" context of the Kennedy assassination controversy (perhaps a significant remark in light of our discussion of bias); and (3) the questions whether the assassination was the work of only one man, and whether the critics of the Warren Commission were "guilty of misleading the American public" were purely matters of opinion, not susceptible to factual determination.
I am not citing any purported First Amendment justification, because Newman and his colleagues on the Second Circuit Court did not base their ruling on the First Amendment. When, as here, a court declares that its decision “might even be required by First Amendment considerations,” it is indicating that it did not regard such considerations as pivotal, and that doubt remains. In lay terms, it was "padding" to make the decision seem weightier. In legal terms it is called dicta, as opposed to "holding" (ratio decidendi), i.e., the essential rule of the case. Newman's First Amendment musings did not lay down a constitutional rule, thus did not have any precedential force with regard to the First Amendment, notwithstanding that some courts and commentators may find it impressive. At the same time, Newman's circumlocution around a First Amendment ruling made it less likely that the Supreme Court of the United States would accept the case for constitutional review. I will remark further on the significance of this strategic maneuver when I get around to discussing the constitutional implications of commercial advertising in a follow-up post.
There can be little dispute that the activities of President Obama, whether as president, as a husband, or as a father, but especially as a head-of-state visiting China, are all matters of public interest. The president's trip was newsworthy. He is newsworthy. Every move he makes, every breath he takes is a matter of public interest and concern. He actually wore The Weatherproof Garment Company's coat while visiting The Great Wall, and Weatherproof merely republished the bona fide news photograph to advertise the nature and quality of its products.
There also can be little dispute that President Obama is the focal point of many emotions for multitudes in the United States and around the world. He broke a long-standing color barrier to become our first African-American president, a fact of which a vast majority of Americans, particularly those of African-American descent, are justly proud. From a political standpoint, people either approve or disapprove of his performance as president, and those emotions can be equally strong. He is a target of controversy, so people may be expected to hold differing opinions of him.
Significantly, as with the Woody Allen billboards, “The Obama Coat” ad contains no hint of an endorsement of the manufacturer's product; he is simply shown wearing the coat that it makes and sells. Under the terms of Newman's Opinion in the Groden case, there is nothing false about this advertisement: the photograph is genuine and Obama actually wore the coat, which was actually produced by the ad's sponsor. It presents Obama as an attractive man dressed in a well-fitting garment, and does not overtly solicit readers to buy the coat, although that is the ad's obvious purpose and goal.
The ad makes no political argument or statement, unless one was to take it as a subtle appeal to patriotism. It is simply and starkly a solicitation to buy the same coat that President Obama is shown to have worn.
On principle, then, taking Judge Newman's purported justifications on their face, there should be little material distinction between this ad and the Random House ad for Case Closed. One might argue that a distinction lay in the products sold: a garment vis-รก-vis a book. But if this were true, then why did Newman stop short of holding that advertising for a book was entitled to the same First Amendment protection as the book itself? That's the holding that the Groden defendants strenuously argued and obviously hoped for.
There is, however, a fatal flaw in the structure of Newman's argument, in particular his use of a “public interest” rationale to circumvent New York’s statute and its prior interpretation by the New York Court of Appeals:
In the literal context of the New York Civil Rights Law, the terms "advertising purposes" and "purposes of trade" are terms of art, not conjunctive but disjunctively distinct. Subject to carefully delineated exceptions that we will discuss, the violation of either prong may be sufficient for recovery. Flores v. Mosler Safe Co., 7 N.Y.2d 276, 284, 196 N.Y.S.2d 975 (1959). In the Flores case, The Mosler Safe Company reprinted a New York Times story about a building fire which mentioned the plaintiff, together with an accompanying photograph, in an advertisement soliciting businessmen to use Mosler’s product to protect their business records. Flores’ involvement in the story was merely that he happened to be visiting the tenant of the building when it caught fire. When he sued, Mosler defended on the grounds that the advertisement contained a true news account, it did not imply any endorsement by Flores, and that the mention of his name was incidental. The Court found that the story reprinted in the ad, although a news account protected under the “purposes of trade” prong of the New York Civil Rights Law, was not an item of current or general interest, but was intended solely to sell Mosler's products, therefore, Mosler’s advertisement amounted to "an advertisement in disguise" and a misappropriation of Flores’ name and photo “for advertising purposes.”
It is the dual and disjunctive nature of that statutory proscription that guided the development of the case law and two doctrinal exceptions to the statute by the New York courts throughout the twentieth century. New York courts have liberally construed the term "advertising purposes." The use of a name, portrait or picture "for advertising purposes" within meaning of the statute contemplates a use for the solicitation to patronage of a particular service or product. Pagan v. New York Herald Tribune, Inc., 32 A.D.2d 341, 343, 301 N.Y.S.2d 120 (1st Dept. 1969), aff'd, 26 N.Y.2d 941, 310 N.Y.S.2d 327, 258 N.E.2d 727 (1970).
As interpreted by the courts prior to Groden, the objects of these words are treated differently according to the respective classification under which they fall: "for purposes of trade" (under which newsworthy images contained in books, films, newspaper or magazine stories are exempted from the statutory proscription by judge-made doctrine), or "for advertising" (under which only those images that already enjoy the newsworthiness privilege may be republished in commercial advertising as an "incidental use.") The Groden case did not present any kind of penumbral accretion to the meaning of the words "advertising" or "purposes of trade."
On its face, there is no "public interest" exception to the advertising prong of the New York Civil Rights Law, since the statute expressly provides that consent is required for use of a person’s name or likeness in advertising. "Public interest", as interpreted by New York state courts, only attaches to identity uses in news reportage, periodicals, pamphlets, texts, books, theatrical performances and the like. The leading cases in New York confirm that the public interest exception does not apply to advertising, but only to use “for purposes of trade.” Beverley v. Choices Women’s Medical Center, Inc., 78 N.Y.2d 745, 587 N.E.2d 275, 579 N.Y.S.2d 637 (1991).
In Beverley, the defendant used the plaintiffs photograph, name and professional title, on a calendar disseminated by the defendant. The use of her identity was intended to illustrate milestones in the women's rights movement. The calendar, appealing to consumers, also described the medical services rendered by the defendant. The defendant's budget allocation for the calendar was described as being for "advertising and promotion." Plaintiff particularly objected that she opposed the defendant clinic's conduct of abortions. The Court held that
"[A]lthough women's rights and a host of other worthy causes and movements are surely matters of important public interest, a commercial advertiser ... may not unilaterally neutralize or override the longstanding and significant statutory privacy protection by wrapping its advertising message in the cloak of public interest, however commendable the educational and informational value."Id, at 78 N.Y.2d 745, 752, 587 N.E.2d 275, 279,579 N.Y.S.2d 637. (citations omitted.)
Accordingly, proposing “public interest” in the subject as being a decisive consideration that warrants excusing the commercial exploitation of a victim's goodwill and popularity flies in the face of New York State’s authoritative interpretation of its own statute.
We still need to dig deeper into the scope and implications of the nebulous suggestion that “public interest” overcomes anyone’s right to be free of unwanted exploitation in commercial advertising. There are nuances to digest. Until next time, two points may stir further thought:
First, it is difficult to conjure any advertisement that could not arguably describe or represent, even symbolically, the nature and content of its subject, and to deny that proposition serves no more useful purpose than to tease the ingenuity of advertisers and lawyers, rather than to establish and maintain predictable norms of behavior.
Second, it is a short leap from saying that the product has become newsworthy by dint of the fact that Obama was photographed wearing it at a public news event, to saying that, hence, the Weatherproof advertisement for that product inherits its newsworthy properties and merits treatment as "a matter of public interest," i.e., the ad somehow inherits a penumbra of protection from the product being sold. Note as well this comment from one fashionista quoted in a dispatch by the Associated Press that was printed in The Atlanta Journal Constitution when the billboard appeared: “The ad has potential to be effective with consumers because the president and first lady both carry considerable fashion credibility.” This is the conceptual analogue of the defense put forward in Groden v. Random House, Inc. et al., and eagerly adopted by courts that were anxious to avoid a judicial trial of the JFK assassination: The newsworthiness of the subject attaches itself to the product, and an image evoking that newsworthiness may also be made to symbolize the product. Common sense tells us that creative advertisers could employ this same rationale to conscript any well-known figure against his will as a symbol for its product or service, using the thin (and circular) excuse that the product became newsworthy because the person, his photograph, and the subject they embodied were inherently newsworthy.
If the media might employ this justification scheme, why deny any marketer of a product or service that bears some relation to "a matter of public interest"? Conceptually divorcing the Case Closed book from advertising images that were not contained in the book itself, the courts effectively granted advertisers a license for symbolic expression through the use of people's names and likenesses that they had not previously enjoyed, and there appears little reason to restrict such symbolically expressive liberty to advertisers of media products. Once the exploited image is arbitrarily imbued with symbolic and expressive significance for its utility in attracting attention and promoting sales, absent some demonstrably compelling state interest there is little justification left for prohibiting the use of anyone’s image as a symbolic representation of any product in advertising, whether it is a book, a movie, a play, or a coat. I do not believe that this was the intention of New York State courts in interpreting their Civil Rights Law because the alleged “public interest exception” is thereby made to swallow the rule, and the symbolic worth of the image is left to the advertiser’s judgment. In sum, the outcome of Groden was a sub rosa assault against the United States Supreme Court's commercial speech jurisprudence, paving one road toward removing any distinction for purposes of regulation between advertising and ordinary speech by torturing common law doctrine under the rubric "matter of public interest" to forefend a potentially unfavorable constitutional (i.e., First Amendment) ruling by a Supreme Court that has shown no great sympathy for media interests.
If Obama sues, should he win or lose? If he is reduced to a trading symbol employed in advertising for his recognition value, as was Mr. Groden's involuntary fate, and if the “matter of public interest” standard prevails, and if society’s interest in protecting symbolic expression trumps the already limited and fragile proscriptions of the statute, then Obama should lose, and statutes such as the New York Civil Rights Law are effectively defunct, their protections distinguished away and whittled down by common law doctrine. The only two possible resorts remaining to plaintiffs would be the theories of "false endorsement", which may easily be subsumed by other local, state and federal trade regulations or common law causes of action, and “objectionable character,” which may be pre-empted by the traditional common law dignitary torts (e.g., defamation, false light invasion of privacy, intentional infliction of emotional distress, etc.). On the other hand, if New York's state or federal courts adhere to both the letter and spirit of the New York Civil Rights Law as it existed prior to Groden, Obama should win. That statute was not intended to permit such blatant exploitation for someone else’s profit; its purpose was the exact opposite.
New York and the rest of the nation can use another test case of the rights of privacy and publicity, and the New York courts should clarify whether the exploitation of President Obama's image for advertising purposes violated the law. If you found "The Obama Coat" ad inappropriate, you might write to the president.
Next: “Newsworthiness” and “Incidental Use”: How the Second Circuit Changed the Law
