Did John McCain invade Paris Hilton's rights?

While not quite a "defamation" issue, John McCain's campaign recently made news by using - and according to some, abusing - the image of Paris Hilton, purportedly as a means of painting rival candidate Barack Obama as "the biggest celebrity in the world." However, Hilton has the legal right to control the use of her image, especially when it is being used to market a product. And, as it turns out, the McCain camp did not check with Hilton before using her image to market their product. This has not passed unnoticed by Hilton, who "blasted the McCain camp for using her image without asking for permission," and whose representatives reported that "Miss Hilton was not asked, nor did she give permission for the use of her likeness in the ad."

In short, the ad may constitute a violation of the privacy or right of publicity laws of quite a few states (a quirk of the area of law is that the term "privacy" is often used to denote "publicity" rights). This opens the door for Hilton to potentially recover a financial penalty from the McCain Campaign. However controversial the basis of her publicity may be, there can be no doubt that, with the price Paris Hilton is typically paid for the use of her image, it is well-recognized as a valuable commodity.

The likely counter-argument is that McCain's use of Hilton's image was protected "political speech," for which a higher degree of leeway is generally permitted than for pure commercial speech. However, even the political speech doctrine is not without limits. If McCain's campaign staff decided to make a commercial showing bouncing basketballs in order to decry Obama's athleticism, they could not walk out of a sporting goods store with armloads of basketballs and refuse to pay for them because they were to be used as part of a political message. Nor could campaign workers use film on a privately-owned basketball court without first obtaining the permission of the owner (and likely paying the going rate to rent the space) - even if they left the edifice exactly as they found it. So it is with the image of Paris Hilton, an article of commerce of determinable value which could have been ascertained prior to its use, and for which permission should have been asked.

Were I advising McCain's campaign, I would tell them to immediately pull that ad (or at the very least remove the imagery of Paris Hilton, and of Britney Spears if it too is unauthorized). Even campaign donors unrelated to the victim are unlikely to be pleased with the prospect of some portion of their donations landing in Hilton's pockets, by a settlement or a judgment.


All images used in this blog are from the Wikimedia Commons.