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Malia Is Marvelous, Sasha Is Sweet, but Are They Legal?

Michelle Obama may have once been a copyright lawyer, but in criticizing Ty Inc.'s Obama-inspired "Marvelous Malia" and "Sweet Sasha" dolls, Obama was wearing her mom hat, not her lawyer hat. In a recent statement, Mrs. Obama's press secretary asserted that "it is inappropriate to use young private citizens for marketing purposes" -- but made no mention of any possible legal issues.

So, do the Obamas have a legal remedy for stopping the production of the dolls? Mark Goldstein, posting at Patently-O, believes that there are a few legal options to stop sales. First, Sasha and Malia could bring claims for false endorsement against Ty for using their names and likeness to sell the dolls. In addition, Goldstein says that "the right of publicity protects the commercial value of an individual in the commercial use of that person's identity." Susan Newman at Psychology Today suggests another remedy besides injunctive relief -- for example, the Obamas might seek royalties from sales and donate them to an Obama scholarship fund or a worthy children's program.

On the other hand, a blog post at doubts the viability of a lawsuit. First, the Obamas would have to bring the suit, not their daughters, and they'd have to prove that the dolls were based on their daughters (which Ty somewhat implausibly denies). In addition, the Obamas would need to show that their daughters are not public figures and that the dolls caused emotional distress or invasion of privacy, which would be harder to prove if the girls are deemed public figures.

Ultimately, it seems as if the First Lady's first instinct to play the mom-card, rather than the law-card to stop sales of the dolls makes the most sense.

Posted by Carolyn Elefant on January 27, 2009 at 11:28 AM | Permalink | Comments (1)


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