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Wednesday, February 4, 2009

White House Lawyers Look to Limit Commercial Use of President

Julianna Goldman

Barack Obama’s popularity makes him a marketer’s dream. Now, the honeymoon may be over for those trying to profit from his appeal.

White House lawyers want to control the use of the president’s image, recognizing the worldwide fascination about Obama’s election, First Amendment free-speech rights and easy access to videos and photos on the Web.

“Our lawyers are working on developing a policy that will protect the presidential image while being careful not to squelch the overwhelming enthusiasm that the public has for the president,” White House spokeswoman Jen Psaki said.

Obama’s calls for change and his “Yes We Can” campaign mantra are being evoked to sell assembly-required furniture in Ikea’s “Embrace Change” marketing campaign, bargain airfares during Southwest Airlines Inc.’s “Yes You Can” sale and “Yes Pecan” ice cream at Ben & Jerry’s Homemade Inc. shops.

“I can’t remember this ever happening to an active politician before, as a spokesperson or as an image for a brand,” said Brad Adgate, director of research for Horizon Media Inc., a New York-based advertising agency. “He’s in the highest profile of any person in the world right now.”

Riding the wave of Obama’s popularity may become a concern when advertisers use his likeness without permission to imply that Obama is endorsing a product or cause. The White House through the years has objected to commercial use of presidential faces, such as footage of President George H.W. Bush in a Cold War-themed 1989 television ad for cold medication.

Presidential Speeches

The National Education Association is running a TV ad with excerpts from a speech Obama gave on July 5, 2007, with the group’s logo behind him.

The educators’ group has previously shown remarks by Obama in Web videos and is confident the president shares a “clear and longstanding” commitment to “real change and real reform in education,” said Steve Snider, NEA’s manager of advertising and broadcast services.

The Web site for McKinstry Co., a Seattle-based mechanical contractor that Obama visited during last year’s presidential campaign, features a YouTube clip of Obama praising its work improving energy efficiency at schools and office buildings. “As president I’ll use companies like McKinstry as a model for the nation,” Obama says. McKinstry spokeswoman Genevieve Guinn said the company bought rights to the video and hasn’t gotten any White House complaints.

Obama’s face is on a full-page newspaper advertisement by the American Coalition for Clean Coal Electricity, a lobbying group in Alexandria, Virginia.

Burning Coal

“We figured out how to put a man on the moon in 10 years,” the ad quotes Obama as saying last August. “You can’t tell me we can’t figure out how to burn coal that we mine right here in the United States of America and make it work.” The group also began running a TV ad in December that shows footage of Obama promoting clean-coal energy during a campaign event last September.

The clean coal lobby group told Obama representatives about the ads before the inauguration and “received no signals from them that there was any discomfort,â€

As a record-setting crowd jammed Washington earlier this month for Obama’s inauguration, Obama’s face was featured on thousands of t-shirts, coffee mugs and calendars for sale at stores and street vendors across the capital. Obama’s official inaugural committee got into the act, too, setting up its own memorabilia store.

Malia, Sasha Dolls

Since the Obamas moved into the White House, Michelle Obama objected to the sale by Beanie Babies-maker Ty Inc. of dolls with the same names as her daughters. The company said the Sweet Sasha and Marvelous Malia dolls weren’t modeled after the first daughters.

A search for Michelle Obama’s name on Google Inc.’s Web site brings up an online ad for J. Crew Group Inc., which got free publicity when the first lady wore a J. Crew outfit on NBC’s “Tonight Show With Jay Leno” last October. “Inauguration Style: Get Looks Like Those Worn by the First Lady” the Web ad says.

Psaki wouldn’t provide details about legal options the White House counsel’s office is considering to deal with commercial use of Obama’s likeness.

The White House lawyers may have to make case-by-case determinations about the best ways to protect the presidential image without tempering enthusiasm or trampling on free-speech protections, said Jonathan Band, an intellectual property lawyer in Washington.

“It will be difficult,” Band said. “Because he is the president of the United States and there was this campaign and everyone’s proud, I think the First Amendment will be applied much more broadly with respect to people wanting to use an image of the president than it would be with typical entertainment figures or sports figures.”

Commercial Exploitation

The use of Obama-related images also may involve copyright issues and various state laws about the ability of individuals to control commercial exploitation of their likenesses, Band said.

Appropriation of a president’s face and voice, to a large degree, come with the territory, said Princeton University historian Fred Greenstein.

“It’s par for the course,” he said. Presidents have all been imitated, positively and negatively, in one form or another, he said. “When you have really newsworthy and dynamic figures they invite parody, they invite idolizations, they invite imitation in one mode or another.”

Global Appeal

As someone with a fresh face and broad international and domestic appeal as the first black president, Obama’s celebrity status is unusually susceptible to marketing pitches, said Al Ries, chairman of Ries & Ries, an Atlanta-based marketing strategy firm.

“There’s just no question that any marketer that can find an angle,” he says, “would benefit enormously with the association.”

Still, regardless of whether the president’s lawyers lay down the law soon, Obama’s popularity will likely ebb and flow just like any other politician’s.

“Now’s the time to latch on to his coattails, because it isn’t going to last forever,” Ries said.

To contact the reporter on this story: Julianna Goldman in Washington at jgoldman6@bloomberg.net .

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