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According to this question, depending on the jurisdiction, individuals have certain "personality rights" over the use of their name and likeness.

I know that, in the US, these can vary from state to state, and that public figures generally lose some of these rights when their name/likeness becomes famous. But I still believe that commercial use of a public figure (e.g. making a toy, selling a shirt, etc) without their permission would violate those rights.

Are these rights (again, in the US specifically) affected when an individual becomes a government official, particularly a federal government official? I'm vaguely aware of the idea that the federal government doesn't have the same intellectual property rights as private citizens, but I have no idea if this affects individuals.

(The motivation for this question is this image which is slightly NSFW but I assume it would apply regardless of the specific usage of the president's likeness.)

  • The link is no longer working, appaently the page linked to has been taken down. – David Siegel Apr 28 at 14:35
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One does not lose legal rights by becoming a government official, so POTUS retains the right to sue for defamation, hold copyright, sue for trespass or breach of contract, and so on. The standards for defamation change when one becomes a "public figure" (you have to show "actual malice"), but this is much broader than being a government official. Anything that is a "work of the US government" is not protected by copyright, so presidential decrees, as government works, are not protected by copyright.

I do not know of any state where one legally loses publicity rights as a function of being famous, or being an elected official. California Civil Code §3344 spells out the right of publicity in that state, which says that anyone who

knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent

can get sued. However, there is a "fair use" escape clause:

For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).

The law doesn't say exactly what constitutes a "political campaign" or "public affairs broadcast or account", but since politicians get caricatured in the papers all the time, with no requirement for consent, it is highly likely that the use you point to would be found to be part of a "political campaign" or "public affairs account".

Additionally, under the First Amendment, you can criticize a government official, and that right is not limited to just critical words. It is obvious that the things on sale are basically criticism of POTUS, and you can't use the law to suppress such criticism. Accordingly, one could also criticize Tom Cruise (not a government official) using his likeness on such an object. However, one cannot exploit his image to sell perfume.

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    The last paragraph implies that the First Amendment prohibits suppression generally - it only prohibits it by the government. POTUS in a private capacity (or Tom Cruise) can attempt to have such products removed without the first amendment being relevant - except as to argument about if POTUS was acting privately. – Dale M Nov 19 '17 at 21:42
  • @Dale M That is not correct. The original Times vs Sullivan case which created the "actual malice" standard) was a case of a private suit for defamation (although by a public official). The use of the court system was enough to make this "State Action" and bring in the First Amendment (via the 14th). even though the suit was not a governmental action. The "public figure" rule applies to many purely private defamation suits. A similar standard should apply to personality rights cases. – David Siegel Apr 28 at 14:44

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