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The Legal Department: What's In A Name?

Marc S. Cooperman -- Gifts and Dec, 3/1/2009 12:00:00 AM

Marc S. Cooperman is a partner with Chicago's Banner & Witcoff Ltd

When you hear the names Sasha and Malia, who comes to mind? The well-known maker of Beanie Babies, Ty Inc., hoped consumers would associate those names, which happen to be the same as those of President Obama's young daughters, with its TyGirlz dolls. Was this a calculated publicity stunt or a coincidence? You decide.

Just as the country was preparing for the inauguration of President Obama, Ty added "Sweet Sasha" and "Marvelous Malia," two African-American dolls, to its TyGirlz collection. The media coverage of Ty's newly introduced dolls was immediate. The reaction from the White House was immediate, too. Mrs. Obama, through her spokeswoman, protested Ty's use of the girls' names for commercial benefit, calling it "inappropriate." Mrs. Obama, a seasoned lawyer, had a legal point to make, in addition to her concerns as a parent.

The right of publicity

The law recognizes what is known as a "right of publicity" for prominent people. This allows persons in the public eye to control how their image, attributes and name are used for commercial purposes. For example, using an actress's image, or even her distinctive singing voice, to sell products without her permission would violate this right.

But the right of publicity has limits, and one significant limitation is the First Amendment. When a public figure's image is used in connection with an expression of free speech, particularly when criticizing our government, the First Amendment will protect that speech and trump the right of publicity. Examples of this would be bobblehead dolls of our political leaders that parody certain of their traits.

But is there a political connection here? At first, Ty denied the Obama children were an inspiration for its choice of names. Instead, Ty's spokeswoman said the names were chosen merely because they are "beautiful" and worked well with the dolls they were making. The denial garnered even further publicity for the company. Then, in early February, Ty capitulated. It admitted that "the names ... were inspired by this historic time in our nation's history," and that it was renaming the dolls in deference to the wishes of the First Family.

Ty had to know that its Sasha and Malia dolls would raise eyebrows, yet garner much attention. Is "any publicity" really "good publicity"? When introducing new products, make sure to work closely with your legal counsel to decide whether you want to be known as the good guys or the bad guys.

Author Information

Marc S. Cooperman is a partner with Chicago's Banner & Witcoff Ltd. He specializes in IP litigation. He can be reached via email at mcooperman@bannerwitcoff.com.

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