Sasha and Malia Dolls: Legal Remedies for the Obamas

by Mark Goldstein

We’ve seen that Ty is selling Sasha and Malia dolls. Can the Obamas do anything to stop this? They have a couple of options.

The Obamas could sue Ty for under the federal law of false endorsement as well as for infringing their common law and statutory rights of publicity based on state law. However, there is no federal law that protects the right of publicity. A First Amendment defense of artistic expression can likely be brought in response to a state claim of right of publicity.

A federal false endorsement claim may be based on the unauthorized use of a celebrity’s identity when the use of the identity is likely to confuse consumers to believe that the celebrity sponsored or approved the product of another.   Sasha and Malia may be able to bring a claims for false endorsement against Ty as their name and likeness is being used to sell the dolls.

The right of publicity protects the commercial value of an individual in the commercial use of that person’s identity. Many states protect the right of publicity with regard to name, voice, signature, photograph, and likeness. Some states provide more expansive protection that protects the image, distinctive appearance, gestures and mannerisms of a person.

For example, in California, statutory protection is limited to appropriation of the actual photograph or likeness. For a likeness to be appropriated under California statutory right of publicity, the doll would need to clearly show features of a celebrity. Although the dolls do not have the precise features of the Obama girls on which they are based, the girls have a case because elements evocative of the girls are included in the dolls.

In response, Ty could assert a First Amendment defense. The California Supreme Court stated that there is “a balancing test between the First Amendment and the right of publicity based on whether the work in question adds significant creative elements so as to be transformed into something more than a mere celebrity likeness or imitation.” To prevail with a First Amendment defense, Ty must successfully show that “the value of the work does not derive primarily from the celebrity’s fame.” This seems to be near impossible here.

So, Malia and Sasha could take action in federal or state court to have the sale of the dolls stopped.   This leaves us with two questions – First, what was Ty thinking when they did this? Don’t they have lawyers on retainer? Second, will the Obamas take action against Ty? Or will Ty stop on their own? We’ll have to wait and see.

Comments

[Dennis]

Or perhaps Ty and the Obamas will make a deal, such as all profits from the dolls going to charity.

[Dennis]

Or perhaps Ty and the Obamas will make a deal, such as all profits from the dolls going to charity.

[Steve M]

Mark/other IP experts: If/since this is the case, doesn't the family have the same protections & remedies against all the other products we're all seeing everywhere now...including "commemorative" plates and coins being sold by well-known, long established, reputable companies?

Are such items/works of "art" treated any differently by the laws you refer to?

[me]

They have jurisdiction to bring suit in the State Court of CA where their is the most, and the best law for the Obama's on this. They would get a cease and desist, and they would shame Ty into pulling the dolls very quickly.

[Cathy]

It's unseemly, and I don't buy that Ty just happened to stumble upon these names, but I'd take Ty's case if they were sued. This is the kind of thing that happens when people enter the public consciousness. Balancing the harms we are much better off having things like this happen than being the kind of country that prohibits things like this from happening. Can't comment on the First Family? How very French, Thai, et al we would be.

[Andrew Dhuey]

The Obamas should shut this down, post haste, and shame Ty publicly in the process. If they cut a deal (even for charity) they will be opening the door to who knows what other crass exploitation of their daughters.

I'll take the case pro bono, Mr. President!

[Just an ordinary inventor(TM)]

Me Too, pro bono & pro se!

[kushka53]

Historically, lots of dolls have been based on real people. Bottom line is, lighten up Michelle. These girls are adored by the Nation and dolls can be good role models for children, who are after all innocents. They don't hold their beloved doll and say, "hey, this is exploitation!" Besides, we are a capitalist nation, free to make money as we wish...I'm sure there will be lots of memorabilia that pays homage to this unique first family while making a buck.

[kushka53]

Historically, lots of dolls have been based on real people. Bottom line is, lighten up Michelle. These girls are adored by the Nation and dolls can be good role models for children, who are after all innocents. They don't hold their beloved doll and say, "hey, this is exploitation!" Besides, we are a capitalist nation, free to make money as we wish...I'm sure there will be lots of memorabilia that pays homage to this unique first family while making a buck.

[kushka53]

Historically, lots of dolls have been based on real people. Bottom line is, lighten up Michelle. These girls are adored by the Nation and dolls can be good role models for children, who are after all innocents. They don't hold their beloved doll and say, "hey, this is exploitation!" Besides, we are a capitalist nation, free to make money as we wish...I'm sure there will be lots of memorabilia that pays homage to this unique first family while making a buck.

[kushka53]

Historically, lots of dolls have been based on real people. Bottom line is, lighten up Michelle. These girls are adored by the Nation and dolls can be good role models for children, who are after all innocents. They don't hold their beloved doll and say, "hey, this is exploitation!" Besides, we are a capitalist nation, free to make money as we wish...I'm sure there will be lots of memorabilia that pays homage to this unique first family while making a buck.

[kushka53]

Historically, lots of dolls have been based on real people. Bottom line is, lighten up Michelle. These girls are adored by the Nation and dolls can be good role models for children, who are after all innocents. They don't hold their beloved doll and say, "hey, this is exploitation!" Besides, we are a capitalist nation, free to make money as we wish...I'm sure there will be lots of memorabilia that pays homage to this unique first family while making a buck.

[kushka53]

Historically, lots of dolls have been based on real people. Bottom line is, lighten up Michelle. These girls are adored by the Nation and dolls can be good role models for children, who are after all innocents. They don't hold their beloved doll and say, "hey, this is exploitation!" Besides, we are a capitalist nation, free to make money as we wish...I'm sure there will be lots of memorabilia that pays homage to this unique first family while making a buck.

[patent leather]

This is horrible, Ty should respect the little girls' privacy. They have enough to go through as it is. I don't see anything wrong with Obama/Michelle dolls, but to use the little girls is over the top.

[Jeff Spangler]

Academic questions at best. From the public relations and political perspectives, I would advise the Obamas to say no more. Further comment will only fuel Ty's sales, which come to think of it, may be good for the economy.

[SF]

The dolls may be in poor taste, which may the Obamas successfully "shame" Ty.

I'm wondering whether the girls are public figures and, if so, how that plays into the analysis, if the Obamas sued.

Of course, Ty must know that such a lawsuit would be a huge distraction for the Obama administration -- and thus would likely not be brought. Moreover, by bring the lawsuit, the Obamas might appear to be trying to monopolize the monetization of their daughters' celebrity -- making them look (fairly or unfairly) like greedy parents in the process.

Kudos to Ty for getting tons of free press.

[Phil]

The Obamas are both lawyers and pretty good ones. I'm sure they don't need advice about their legal options. For those who say "lighten up", they must not have children. The elected officials may be fair game, but their families are off limits and entitled to the same protection and freedom from exploitation as all private citizens. This applies to families of public figures as much as celebrities. Just try making money off of the Pitt-Jolie kids and you'll be sued into oblivion.

Ty should have known better.

[Phil]

The Obamas are both lawyers and pretty good ones. I'm sure they don't need advice about their legal options. For those who say "lighten up", they must not have children. The elected officials may be fair game, but their families are off limits and entitled to the same protection and freedom from exploitation as all private citizens. This applies to families of public figures as much as celebrities. Just try making money off of the Pitt-Jolie kids and you'll be sued into oblivion.

Ty should have known better.

[John Roethel]

Nixon would have known what to do. Put Ty on the "enemies list". Send in the plumbers (not Joe, the real plumbers). Audit Ty's tax returns. Tap Ty's phones.

[Geoff Cooper]

We don't see the Obamas objecting to all the "commemorative coins" and the like being constantly marketed on TV. When you become a celebrity, you take the negatives along with the positives. These dolls do not appear to be derogatory in any way. I suggest the Obamas let it slide.

[dennis]

Not surprisingly, Ty is pretty zealous (perhaps overly so) and IMHO dishonest about protecting its own reputational rights. See 292 F.3d 512, 520 ("... veto any text ... forbids its licensees to reveal they are licensees ...")

[matt jellett]

Interesting play. I've heard talk of presidential commercial endorsements...I thought it was a joke, but if Ty is trying to force the Obamas into endorsing a line of dolls... The kids are obviously famous and could use that to their advantage. If they had one endorsement in commerce, they likely could use that endorsement to stop all other uses of the girls names/likenesses. Although first use is a problem.
If I were the Obamas, I'd try to make some lemonade. Why am I talking about a trademark/celebrity rights issues on a patent blog?

[Roger Karp]

Phil,

With all due respect, to the best of my knowledge, Mr. Obama has not had an active law license since 2002. He, of course, could file pro se.

In any case, there is an old legal adage, "He who represents himself has a fool for a client and a knave for a lawyer." I'm pretty sure the Obamas would seek experienced counsel in such matters rather than pursuing it themselves.

[J. Faber]

Legally speaking, this likely constitutes an actionable infringement. Even political figures possess a right of publicity, and here we're talking about the daughters. The defense of artistic expression, as cited in the article, would not be a defense to this commercial use. However, one comment astutely noted that this is probably a PR matter as much as a legal one. More information about the right of publicity is available at: rightofpublicity.com

[Arleen Zank]

While the Obama's round up the wagons and get their infringement case locked and loaded Ty will be selling these dolls to all comers. Imagine the depositions.

When you have pictures of your kids on the cover of People Magazine and parade them around letting reporters ask where their clothes came from (J Crew), when you let news come out about the inauguration day scavenger hunt featuring the Jonas Brothers, you enter the celebrity zone. They may be kids but this kind of behavior blurs the lines between private citizens and public figures. I would simply bring out all the pictures taken during the campaign and all the magazine articles that the Obama's consented to that had the picture of their daughters and let them speak for themselves.

I wish Mrs. Obama good luck with this, I'm sure these dolls are extremely upsetting to her.

[Thorne]

What's the big deal? Obama draws all the attention he can to himself and his family, and then when he gets it, he's supposed to hire lawyers to stop it?

Perhaps he should cover his children's faces, as we've seen Michael Jackson do with his kids.

[Jim63135]

Since the timing of the dolls release coincide with the President's election, both the dolls are African American, both the dolls share the first daughters' names, and the dolls are the approximate age, I think TY would be held responsible for false endorsement. It would be hard for a judge or jury to disregard these facts.

[Dave]

If they wanted privacy, he should have stayed in Illinois. No one is making dolls using my daughter's name.

[Dave]

If they wanted privacy, he should have stayed in Illinois. No one is making dolls using my daughter's name.

[Dave]

If they wanted privacy, he should have stayed in Illinois. No one is making dolls using my daughter's name.

[big hairy rat]

As a father, what Ty is doing makes my skin crawl. As a practical matter there is probably nothing legal that the Obamas can do.

[Just an ordinary inventor(TM)]

Hello Mr. rat,

Re: “As a father, what Ty is doing makes my skin crawl.”

As a father, I certainly agree.

* * * * *

Re: “As a practical matter there is probably nothing legal that the Obamas can do.”

I only wish I could agree; this is America in the 21st Century – Judges can and do anything they dam well please.

[Collect-o-mania]

Regardless of any legal outcome, Ty will see vigorous sales. If sales are enjoined, the sold units will become cult-collector classics further enhancing the collector appeal of Ty.

Any action including no action will benefit Ty.

[big hairy rat]

The Courts have displayed a decidedly pro-Republican slant in the past: they willingly allowed themselves to be used to attack Clinton in politically driven litigation through out his term and the actions of the courts in the 2000 election was generally disgraceful.

The Obamas should stay well clear of the courts.

[Commentor]

Unlike the extent to which prior presidential candidates and presidents, the Obamas chose to use Sasha and Malia to get elected and then to put and keep them into the news once Obama got elected. Ty was thinking that the Obamas would not take action against Ty because it is not something a President does. As I recall (very badly I might add), the president's own image etc. are specifically excluded from copyright (trademark?) protection but his wife's image is protected until her death, so that IP issue might be relevant. Ty Inc. is based in Westmont, Illinois, the same state from which Obama was a U.S. Senator. There is more going on behind U.S. based company Ty's choice to do something that they must have known would piss off the President of the United States. Show of hands - How many of you already have your Impeach Obama bumper sticker on your car?