Legal News

Weatherproof Relents on JacketGate, But Did It Have To?

By Ashby Jones

The dustup earlier this week between the White House and garment maker Weatherproof was the intellectual property version of a supernova: It burned bright and hot, but for not very long.

The backstory: on Wednesday, the pictured billboard in New York’s Times Square went up, showing a picture of President Obama wearing a Weatherproof coat during a recent trip to China. The picture had been licensed from the Associated Press. The ad didn’t say anything indicating that Obama endorsed the product; It carried only a tagline reading “A Leader in Style.”

But the billboard clearly got the attention of those at 1600 Pennsylvania Ave. Various outlets reported that the White House called Weatherproof to ask that they take the billboard down.

“The White House has a longstanding policy disapproving of the use of the president’s name and likeness for commercial purposes,” said White House spokesman Ben LaBolt in a written statement.

We read this on Thursday and felt a little spring added to our step. What if Weatherproof and its president, Freddie Stollmack, held out? What fun it would be, eh? A preliminary injunction hearing involving the White House and a jacket-maker!

But alas, it was not to be. Stollmack and Weatherproof backed down. According to the AP, Stollmack “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.”

The resolution left us feeling empty. Who, we wondered, was in the right on this front? On the one hand, the photo seems to imply, in a way, that Obama endorsed the coat and does seem a little cheesy. On the other, Stollmack got the license to the photo and refrained from saying explicitly that the Prez had endorsed the coat. The photo, at its most basic level, states a fact: Obama wore the coat on the Great Wall.

For a little insight, we checked in with William Coats, a partner in White & Case’s IP department out in Palo Alto (and appropriately named for the case at hand).

Did Weatherproof have to back down, we asked? Coats said the law simply wasn’t that clear. “Give me a few minutes and I could show find you a case taking either position,” he said. Coats said that the law on publicity rights — the right one has to control his or her own image or depiction in public — is a hodge-podge. “Some states have statutes, others, who follow the common law, have interpreted it in a variety of ways.”

Answers like that are so, well, deeply unsatisfying. So we asked Coats to at least craft the arguments he would have made on behalf of either party had this gone to court (because Obama likely wouldn’t have been looking for damages and because the facts are likely undisputed, the case likely would have been resolved by a trial court judge at the preliminary-injunction stage).

Coats said Weatherproof might have emphasized that the photo is merely a factual depiction, that nowhere does it explicitly say Obama endorsed it. Coats said, however, that had he been advising the company, to be safe he might have advised them to include a cleverly written note saying explicitly that there was no endorsement.

Had Coats been advising Obama, he’d have argued that the billboard clearly (but implicitly) implies an endorsement.

Finally, Coats emphasized the point, also made by others, that while Weatherproof pulled the ad, it got a lot of mileage out of it. “If you’d asked me 24 hours ago who Weatherproof was, I’d have had no idea,” he said. “Now, here we are talking about it.”

Photo: AP

Full post as published by Law Blog - WSJ.com on January 08, 2010 (boomark / email).