What is striking about this advert is that it does look like a collection of powerful women standing together in support of the campaign.
PETA admits that it did not ask for consent to run the ad from the First Lady and was aware that she declines to make most endorsements. This is part of the organizations “Make D.C. Fur-Free” campaign.
In PETA’s favor, she is a public figure and it is stating a fact that she does not appear in fur. This is also not a commercial enterprise.
However, the restatement’s comments disagree that commercial use is a requirement:
652C Appropriation of Name or Likeness
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.Comments:
a. The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it.
b. How invaded. The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff’s name or likeness to advertise the defendant’s business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff’s name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness.
Recently we saw Woody Allen prevail against a commercial seller for the use of an image from a famous movie, here.
Given the controversies surrounding PETA, it is unlikely that the Obama Administration would want to have an apparent association with the organization (even if the First Lady might agree on the fur question). The White House has already objected to the picture. A great variety of organizations could use such images.
I am not sure if this was a calculated controversy or an honest view by PETA lawyers that you can use the image of a celebrity in this fashion. It is unlikely that the First Lady would seek damages from a public interest organization. I am just glad that this PETA featured fully clothed women, here.
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