Honoring past presidents by shopping is now American tradition, let’s face it. And merchandisers aren’t shy about using Presidents Washington or Lincoln to hawk their wares. But there have to be legal issues surrounding the idea of plastering presidential images on everyday merchandise like coffee mugs or key chains. Right?
Mitch Stein is a New York attorney who specializes in intellectual property. He says slapping a president’s face on an ad for discounted mattresses is — perfectly legal. Sort of.
This all stems from something called “the right of publicity.” These are laws granted by states that give an individual the right to control their own image. And the longevity of those rights — whether or not they last after death — depend on the state in which the individual was living in when they died.
In California, the heirs of an individual have rights to the image for 70 years after death. In New York, rights end after death. Lincoln and Washington had passed away long before the right of publicity was adopted as law so their images are considered fair game (even expected).
But President Regan? He passed away in 2004 as a resident of California. His family will own the rights until 2074. So that “Ronald Reagan is my homeboy t-shirt” you can find on the web? President Regan’s family probably didn’t license that.
Political statements (as the t-shirt could be considered) and art are protected under the First Amendment. But what about coffee mugs and bobble heads? That’s where it gets dicey.
“We know art on the one hand is protected. Probably coffee mugs are probably not protected but where that line falls in the middle is really something that the courts continue to try to sort out,” says Stein.
But Stein says you don’t often see the heirs of former presidents taking the makers of such items to court.