Ad Law Access : Washington D.C. Advertising Lawyer & Attorney : Kelley Drye & Warren Law Firm : New York, Chicago, Connecticut, New Jersey, Brussels

Yesterday People for the Ethical Treatment of Animals ("PETA") announced that it will pull ads featuring the likeness of first lady Michelle Obama. The image was used without Michelle Obama's permission and created the impression that she endorses PETA. The ads also featured Oprah Winfrey, Carrie Underwood, and Tyra Banks and began appearing on New Year's Day in subway stations in Washington, DC, and on PETA's van and website.

PETA admitted that it did not have authorization, but thought that the first lady's announcement in June that she had sworn off fur justified including her in the campaign. PETA claims that it is not selling a product (or otherwise using the image for commercial purposes); rather, it is honoring beautiful women who do not wear fur.

As with Weatherproof's use of President Obama's image, PETA's predicament is a good reminder that organizations should evaluate the circumstances before using images of public figures or celebrities in ads.  An individual's statement that he or she uses a product (or, in this case, does not use a product) may not be a significant basis to use the individual's image or to imply that he or she endorses the product.
 

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Last week, the White House asked Weatherproof to remove a Times Square billboard that featured President Obama wearing a Weatherproof jacket in front of the Great Wall of China. According to the White House, the billboard was misleading because it suggested that the clothing was endorsed by the President and that the White House had approved the ad.

The photo was taken by a photographer from The Associated Press and Weatherproof subsequently purchased the right to use the photo from AP Images. According to The AP, their agreement with Weatherproof required the company to seek any necessary clearances before using the picture. The company's president, however, said he did not believe permission was necessary because the billboard did not explicitly say Obama endorses the jacket. News reports indicate that two newspapers and one magazine refused to publish the Weatherproof ad without evidence of the President's approval.

Be careful about using an image of an individual for advertising purposes unless you have permission from that individual. Simply having permission from the photographer is not enough. If you use the image of an individual in an ad without the individual's permission, you could face a lawsuit under right of publicity laws. Although the White House simply requested that Weatherproof remove the billboard for now , some companies have had to pay millions of dollars to settle these types of unauthorized or implied endorsement issues.

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