Can Hillary Clinton stop companies from selling Halloween masks of her face?

Answers to your questions about the news.
Oct. 30 2007 5:38 PM

Dress as the Explainer for Halloween!

There's nothing we can do to stop you.

Hilary Clinton. Click image to expand.
Hillary, Hillary, and Hillary

A new survey reveals that of all the 2008 presidential candidates, Hillary Clinton and Rudy Giuliani would make for the scariest Halloween costumes. Last-minute shoppers can still pick up Halloween masks of Dick Cheney, Laura Bush, Donald Rumsfeld, Bill Clinton, the Rev. Al Sharpton, and other famous people who probably didn't give manufacturers permission to market their mugs. Could Hillary Clinton order the companies to stop selling her face?

Torie Bosch Torie Bosch

Torie Bosch is the editor of Future Tense, a project of Slate, the New America Foundation, and Arizona State that looks at the implications of new technologies. 

Not really. She and her lawyers could make a case, but it's hard for public figures like politicians to sue and win in these situations. Depending on state laws, private individuals can control how their image is used under the "right of publicity," the legal principle that applies if someone uses your name or likeness to sell a product. (For example, a Texas teenager has sued Virgin Mobile for using a picture of her without permission in an Australian advertising campaign.) But when it's a politician or other prominent public figure, the right of publicity comes into conflict with the First Amendment, and our right to speak about—and mock—our leaders.


A politician or movie star does have some control over where her face appears. For example, Hillary Clinton or Hilary Swank could sue a company for using her face without permission to advertise a product—just like the Texas teenager. But unlike private individuals, prominent public figures are fair game when it comes to posters, T-shirts, and other products that make a statement. A comical and distorted Halloween mask has even greater protection; its "transformative" nature makes it a creative work protected by the First Amendment. The less the mask looks like the actual person, the weaker the potential lawsuit. For example, there's no mistaking this Michael "Wacko Jacko" Jackson mask for a genuine likeness. And there's no suing the manufacturer.

The right of publicity falls under state law and varies widely—in some states it applies only to public figures, for example, and not every state uses the "transformative" standard. Clinton's home state of New York is famous for ruling against right-of-publicity claims in favor of free speech arguments. In the 1960s, Pat Paulsen, a TV comedian engaged in a mock campaign for president, sued the manufacturers of "Paulsen for President" posters. The company won on First Amendment grounds. California, where Gov. Arnold Schwarzenegger settled out of court after suing a bobblehead-manufacturing company in 2004, recently passed an even more expansive right-of-publicity law. The new legislation gives post-death rights of publicity to any celebrity who passed away before 1984, so that the heirs can continue to protect their forebear's image.

Sometimes, a public figure can protect her image with just the threat of a lawsuit. In 2004, a small T-shirt company began to sell "Save Mary-Kate" T-shirts featuring Mary-Kate Olsen, who had recently sought treatment for an eating disorder. Olsen's lawyers sent a cease-and-desist letter to stop selling the shirts, citing the right of publicity. Though the two people selling the shirts could probably have won in court, their small operation didn't have the money to fight Mary-Kate's legal team.

Got a question about today's news? Ask the Explainer .

Explainer thanks Clay Calvert of Pennsylvania State University, F. Jay Dougherty of Loyola Law School in Los Angeles, and Mark S. Lee of Manatt, Phelps & Phillips, LLP.



More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

Yes, Black Families Tend to Spank More. That Doesn’t Mean It’s Good for Black Kids.

Why Greenland’s “Dark Snow” Should Worry You

If You’re Outraged by the NFL, Follow This Satirical Blowhard on Twitter

The Best Way to Organize Your Fridge


The GOP’s Focus on Fake Problems

Why candidates like Scott Walker are building campaigns on drug tests for the poor and voter ID laws.

Sports Nut

Giving Up on Goodell

How the NFL lost the trust of its most loyal reporters.

Is It Worth Paying Full Price for the iPhone 6 to Keep Your Unlimited Data Plan? We Crunch the Numbers.

Farewell! Emily Bazelon on What She Will Miss About Slate.

  News & Politics
Sept. 16 2014 7:03 PM Kansas Secretary of State Loses Battle to Protect Senator From Tough Race
Sept. 16 2014 4:16 PM The iPhone 6 Marks a Fresh Chance for Wireless Carriers to Kill Your Unlimited Data
The Eye
Sept. 16 2014 12:20 PM These Outdoor Cat Shelters Have More Style Than the Average Home
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Slate Plus Video
Sept. 16 2014 2:06 PM A Farewell From Emily Bazelon The former senior editor talks about her very first Slate pitch and says goodbye to the magazine.
Brow Beat
Sept. 16 2014 6:23 PM Bryan Cranston Reenacts Baseball’s Best Moments to Promote the Upcoming Postseason
Future Tense
Sept. 16 2014 6:40 PM This iPhone 6 Feature Will Change Weather Forecasting
  Health & Science
Sept. 16 2014 4:09 PM It’s All Connected What links creativity, conspiracy theories, and delusions? A phenomenon called apophenia.
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.