Intellectual Property (IP) laws are in place to safeguard creators' rights by giving them authority over their creations, such as works of art and designs as well as their own image and identity. A recent dispute arose concerning drag queen Pattie Gonia when her image was featured in a campaign advertisement for Trump without her permission. Wyn Wiley—who embodies the persona of Pattie Gonia—publicly criticized the ad, hinting at the possibility of taking action to address the violation of IP laws regarding likeness usage even in political settings.

The ad, released to criticize Vice President Kamala Harris' support for transgender rights, included footage of Harris with Wiley at a 2022 Pride event. Wiley, also known as Pattie Gonia, shared a video on social media condemning the ad and hinted at legal action, stating, “No, the Trump campaign did not have my permission to use my name or likeness.” Wiley directed his followers to donate to LGBTQ advocacy groups, demonstrating the broader implications of protecting one's identity. 

According to a report by NBC News, this case presents a lesson for companies, content creators, and marketers on the consequences of using someone's image without permission.

The Situation at Hand. Unauthorized Usage of One's Image.

The advertisement put out by the Trump campaign showcased Vice President Kamala Harris backing transgender rights and featured footage of her posing with Wiley at a Pride event in 2022. Wiley expressed his disagreement, stating that he never gave permission for his image to be used and was looking into avenues.

Mark McKenna, a trademark law professor at UCLA, weighed in, suggesting that while Wiley's frustration is understandable, political ads typically receive more legal leeway than commercial ads. This flexibility makes it difficult for individuals to claim damages unless the content is defamatory, which McKenna does not believe applies in this case. Wiley's situation illustrates the complexities of IP law, particularly the right to publicity, which protects against unauthorized commercial use of a person's likeness.

Political advertisements usually enjoy flexibility in terms of constraints compared to commercial ads for businesses and organizations—where unauthorized use of an individual's likeness can result in legal repercussions due to infringement on their right to publicity. However, in scenarios of political context, the law often favors freedom of speech, limiting the ability to seek damages unless the content is defamatory. This distinction illustrates why IP protection is crucial and why creators must be vigilant about how their likeness is used.

Understanding Intellectual Property Law: Copyright vs. Right to Publicity

Intellectual Property law encompasses several areas:

●  Copyright: Protects original works like music, literature, and artistic creations.

●  Trademarks: Safeguards brand names, logos, and symbols that distinguish goods or services.

●  Patents: Protects inventions and new technologies.

●  Right to Publicity: Protects against unauthorized commercial use of a person's name, image, or likeness.

While Wiley may have limited legal options in this case, his concerns highlight the broader issue of right to publicity. For creators and influencers, having control over their image is critical. Unauthorized use can mislead the public, suggesting an endorsement where none exists, potentially damaging the individual's reputation and brand. 

Lessons for Businesses and Creators:

1. Seek Permission and Licensing: Whether for a commercial or political ad, getting explicit permission to use someone's likeness can prevent legal disputes. If a creator's image is part of your marketing strategy, a clear agreement should outline terms of usage, compensation, and limits on the portrayal.

2. Understand Legal Distinctions: Political ads may have broader protections, but this should not be mistaken as free rein. Commercial enterprises must adhere to stricter guidelines to avoid infringing on IP rights.

3. Leverage Legal Expertise: IP law can be complex, and the consequences of misuse can be costly. Consulting experienced attorneys with, like those at Ford Banister IP, can help businesses navigate these intricacies and protect their assets and brand integrity.

The Legal Landscape Moving Forward

As digital platforms grow, the use of images, videos, and likenesses in advertisements becomes more prevalent, making IP laws more relevant than ever. Cases like Pattie Gonia's can serve as a cautionary tale for brands and creators alike. When images are used without consent, it can lead to public backlash and potential legal action, even if the chances of winning a lawsuit are slim due to the context.

Businesses need to take intellectual property rights seriously. If you are unsure about using a particular image, video, or artwork, consulting with an IP lawyer can help you determine the best course of action. Protecting the integrity of your brand and respecting the rights of others should always be a priority.

For more insights into IP law and how it impacts your business, contact Ford Banister IP. We focus on protecting intellectual property and ensuring that our clients' rights are upheld.