Weatherproof, an apparel company which sells its 32 Degrees Weatherproof brand in the outdoor market, agreed Jan. 8 to cooperate with the White House and remove a brand billboard in New York City’s Times Square that shows President Obama wearing a Weatherproof jacket.
The billboard, which was put up in early January, uses an image of Obama standing at the Great Wall of China and includes the Weatherproof trademark and the words “A Leader In Style.”
The flack over the billboard has no doubt generated buzz for New York-based Weatherproof (www.weatherproofgarment.com), but it has also raised questions about the rights of politicians to control their image.
Weatherproof did not respond to several inquiries by SNEWS®, but Freddie Stollmack, president of Weatherproof, told the Associated Press Friday that the White House had contacted him and requested that Weatherproof take down the sign and stop the ad campaign.
While Weatherproof had gotten permission from the Associated Press to use the image, it had not gotten an OK from the White House. According to a Jan. 6, 2010, story in the New York Times, a White House aide said, “This ad is clearly misleading because the company suggests the approval or endorsement of the president or the White House that it does not have.” SNEWS knows from past coverage that suppliers to the White House of anything -- running shoes, treadmills, bikes, backpacks, you name it -- are forbidden by contract from even whispering that the president is using the brand, let alone using the fact in advertising.
The Times also reported that Obama administration spokesman Ben LaBolt said in an email message, “The White House has a longstanding policy disapproving of the use of the president’s name and likeness for commercial purposes.”
Paul Colford, a spokesman for the AP, told the Times that the agreement allowing Weatherproof to use the image “requires the licensing party, in this case the Weatherproof Garment Company, to obtain the necessary clearances -- that is their obligation.”
Andrea Anderson, an intellectual property attorney with Holland & Hart in Boulder, Colo., told SNEWS that a New York statute states, “You can’t use a person’s name, picture or voice in New York for advertising purposes without their consent.”
The heart of the matter is Weatherproof’s use of the image for commercial purposes. If the company used an image of Obama for political speech, it might have the right to keep the billboard up.
“It’s a matter of balancing First Amendment considerations involving political speech,” said Anderson. “Imagine the same ad of Obama without the big Weatherproof trademark, and imagine it just said, ‘A great leader,’ and he just happened to be wearing the jacket. That’s political speech, right?”
Anderson added that Weatherproof could argue that the billboard’s tagline, “A Leader In Style,” was protected speech. “Weatherproof could argue -- maybe not with a straight face -- that they just meant to say that President Obama is a really stylish guy, and that’s social commentary that should be protected similar to political speech. But it’s a pretty weak argument,” she said.
Interestingly, Anderson said no court has actually addressed the issue of politicians and their rights to control their image. “No politician has sued on that issue, probably because politicians are conserving their resources for bigger problems, though some have threatened,” she said.
The issue has also come up regarding a PETA anti-fur advertisement that praises Michelle Obama and celebrities including Oprah Winfrey, Carrie Underwood and Tyra Banks. The New York Times reported that the White House had contacted PETA regarding the ad, which appeared in Washington, D.C., Metro stations, magazines and PETA’s website, and “Semonti Stephens, a spokeswoman for Mrs. Obama, said her office had not consented to that ad. The White House declined to comment on whether the matter had been resolved.”
As for Weatherproof, the Obama billboard seems to be part of a general effort to drum up attention. Allen Cohen, a spokesman for Weatherproof, told the Times in a Jan. 6 report that the company “also tried to run ads in The New York Times, The New York Post and Women’s Wear Daily with the image, but had been turned down by the publications --something it tried to publicize this week.”
With all the newfound attention, Weatherproof may not be exactly rushing to remove the billboard. The AP reported on Jan. 8 that Stollmack said the company “aims to remove the Times Square billboard and another one on the Long Island Expressway by Jan. 22, after figuring out a new ad campaign.” According to a Google Trends report, the ad has already hit pay dirt for the company. The Trends report, which according to Google shows how frequently a topic has been searched during the selected time frame, showed the terms “Weatherproof Company” went from non-existent on the Google search meter before Jan. 3 to a huge spike in searches on Jan. 6 before it started trickling back down again although as of Jan. 11 it’s still drawing interest.