Marketing Ethics in the Spotlight: Navigating the Right of Publicity in the Presidential Cologne Controversy

In the world of product marketing, few controversies capture public attention like those involving President-elect Donald Trump. Recently, the launch of a new Donald-branded cologne ignited debate not for its fragrance but for its promotional imagery. The ad campaign featured a picture of the First Lady and the President-elect while they were both attending the reopening of the newly restored Notre Dame, sparking discussions about the legal and ethical implications of such use. This incident raises an important question: when does marketing cross the line into a breach of someone's right of publicity?

Understanding the Right of Publicity

The right of publicity grants individuals control over the commercial use of their name, image, likeness, or other identifying features. One protection this right offers is preventing businesses from profiting off someone’s identity without permission. This right is recognized in most U.S. states, though the specifics vary widely. For public figures like First Lady Jill Biden, this legal protection is especially significant because their identities are inherently valuable in the marketplace.

In addition to state-level protections, the federal Lanham Act plays a crucial role in cases like these. The Lanham Act, which governs trademarks and unfair competition, can be invoked when a person’s likeness is used in a way that creates confusion about endorsement or affiliation. Under the Lanham Act, unauthorized use of an individual’s image in commercial advertising could be deemed misleading and actionable, particularly if it falsely implies sponsorship or approval.

Legal and Ethical Considerations

  1. Consent Matters: The cornerstone of the right of publicity is consent. Public figures, like anyone else, have the right to control how their image is used commercially. Using someone’s likeness without permission undermines this autonomy and could result in legal action.

  2. Implications for the Brand: From a legal standpoint, unauthorized use of a person’s image can lead to lawsuits, hefty fines, and reputational damage. Ethically, it also suggests a disregard for boundaries and respect, eroding consumer trust.

  3. Free Speech vs. Publicity Rights: While the First Amendment protects free speech, it doesn’t grant carte blanche to exploit someone’s likeness for profit. Courts often balance these rights, especially in cases involving satire or public interest, but commercial advertising generally receives less protection.

The Bigger Picture

This controversy highlights a broader issue in advertising: the ethical use of public figures’ images. While celebrity endorsements are powerful tools, they must be grounded in genuine collaboration and respect for legal rights. Missteps not only invite legal consequences but also erode the integrity of the brand.

Moreover, the right of publicity isn’t limited to celebrities or public figures. Regular people also have the right to control the use of their name and likeness in commercial contexts. For instance, the unauthorized use of a private individual’s photo in an ad campaign or promotional material can lead to similar legal and ethical issues. Protecting this right ensures that everyone, regardless of their public status, retains control over how their identity is used, preventing exploitation and safeguarding personal dignity.

Closing Thoughts

Whether intentional or a careless oversight, the use of First Lady Jill Biden’s image in the Trump cologne ad underscores the importance of understanding and respecting the right of publicity. Beyond prominent public figures, the protections provided by the right of publicity are as important as ever in today’s social media world. Small influencers and regular people alike can easily go viral, leading to infringement of their likeness on a mass scale. The right of publicity serves as an important protection in an online culture that thrives on unauthorized appropriation.

As consumers and citizens, staying informed about these issues ensures that we can recognize and call out unethical practices when they arise. For brands, it serves as a crucial reminder: authenticity and consent aren’t just legal necessities—they’re the foundation of trust in a crowded marketplace.

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