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First Lady Michelle Obama and the White House are outraged at Ty Inc. for producing “Sweet Sasha” and “Marvelous Malia” dolls. The First Lady claims these dolls violate the privacy of her daughters, Sasha and Malia, who are private citizens. Ty says these dolls are part of the TyGirlz collection, which also includes dolls named Lindsay, Brittany, Paris, Hillary and Jenna, and while the dolls are named for the First Daughters, they are not likenesses of any living person.

Does Michelle Obama have a case?

Privacy law is governed by state law, so the outcome varies state by state. There are four general rights to privacy recognized in the United States: (1) appropriation of a plaintiff’s name or likeness for a defendant’s advantage; (2) intrusion upon a plaintiff’s seclusion, solitude, or private affairs; (3) public disclosure of embarrassing private facts about a plaintiff; and (4) publicity that places a plaintiff in a false light in the public eye.

North Carolina has recognized the tort of misappropriation since 1937, and allows a plaintiff to obtain money damages and injunctive relief (an order to stop the commercial use of the likeness). So, here in North Carolina, depending on how similar the actual dolls are to the actual girls, the Obamas might be able to stop the use of their daughter’s likenesses.

But that’s not the interesting issue to me. Obama also emphasizes that her children are private citizens. This is irrelevant to the issue of privacy — it is relevant to libel cases (where you are claiming someone wrote false information about you). Public figures must prove “actual malice” to win a libel suit, while private figures have the much lower standard of merely proving a statement was false.

Are Sasha and Malia Obama private citizens? The girls have been featured at campaign events, the Democratic National Convention, and of course, at the inauguration. Yet, traditionally the press has acquiesced to maintaining a zone of privacy around Chelsea Clinton and Jenna and Barbara Bush, allowing the White House to set parameters concerning press coverage of Presidential children.

Do Sweet Sasha and Marvelous Malia inappropriately use the names or likenesses of Sasha and Malia Obama? Are the TyGirlz significantly more inappropriate or ojectionable than some of the Obama merchandise that is circulating (much of which I assume is unauthorized), such as commemorative coins, the WWBD (What Would Barack Do?) pin, or the Nude Obama Unicorn fan art? Or is there a different standard for the children and the parents?

Tags: actual malice, Barbara Bush, Chelsea Clinton, Jenna Bush, Malia Obama, Marvelous Malia, Michelle Obama, misappropriation, public figure, right to privacy, Sasha Obama, Sweet Sasha

This entry was posted on Wednesday, January 28th, 2009 at 10:53 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.