A recent ad produced and aired nationally by John McCain, " Celeb ," compares Barack Obama to Britney Spears and Paris Hilton. A spokesman for Paris Hilton complained that "Miss Hilton was not asked, nor did she give permission for the use of her likeness in the ad." Did McCain need Hilton’s permission?
Probably not. Most states recognize a "right of publicity" that prohibits advertisers from using a person’s image or name to sell a product. But they will often make exceptions for political speech. In California, for example, you can’t use another person’s "name, voice, signature, photograph, or likeness" for commercial purposes, according to the state’s civil code . But they’re fair game if used "in connection with any news, public affairs, or sports broadcast or account, or any political campaign." So if Hilton wanted to bring legal action in California, which otherwise has strong right-of-publicity laws , she’d be out of luck.
Hilton might have a better shot in states that don’t have a political exemption. In Virginia, for example, where the McCain campaign is headquartered (and where the courts therefore might have jurisdiction), there is no explicit political exemption . A state court did rule in 1984 that candidates can use the images of fellow politicians in their campaign ads. But it didn’t say whether the images of people other than politicians were OK. New York, too, has no statutory exemption for political advertising.
In general, though, political speech is so highly protected by the First Amendment that would-be plaintiffs don’t waste their time. (There are no major cases involving right of publicity and political speech
and for good reason.) Because McCain wasn’t using Hilton to sell a product, she can’t claim that he benefited monetarily from using her image. (If he had sent out e-mails with her picture asking for donations, that would be different.) If she ever did file suit, McCain could argue that he was using her image not to piggyback on her popularity but to make a point. Case, most likely, closed.
Trailhead thanks F. Jay Dougherty of Loyola Law School in Los Angeles. To learn more about the right of publicity, click here .