CNN reports (thanks to InstaPundit for the pointer):
A group of Vietnam veterans opposed to John Kerry’s presidential campaign demanded Tuesday that he remove a photograph that appears in one of his television advertisements.
In Tuesday’s “cease and desist” letter, Swift Boat Veterans for Truth called on Kerry’s campaign to stop what it said was the unauthorized use of the images of some of them in a 60-second biographical spot titled “Lifetime.” The ad began running nationwide in early May.
The U.S. Navy photo in question depicts 20 officers, including Kerry, and was taken January 22, 1969, on the island of An Thoi in Vietnam. The ad shows only a portion of the picture — not all of the men are visible — and is displayed for two seconds.
But even the men who are not in the ad have a right to demand the picture not be used, said Alvin A. Horne, a Houston attorney who served on a swift boat in Vietnam in 1969-1970. He is giving legal advice to the group. Eleven of the 20 men in the picture oppose their images being used in the campaign ad, he said.
“The use of the 11 images in this political campaign wrongfully and incorrectly suggests their present endorsement of his candidacy for president of the United States of America,” said the letter, which Horne wrote. . . .
“Suing is a possibility,” said Horne . . . .
Would the objectors have a good legal case? No. You generally can’t use another name’s or likeness without their permission in a commercial ad, but that doctrine (the so-called right of publicity) doesn’t apply to political ads (and I suspect it wouldn’t apply to such ads even if the ads were overt political fundraising, though that doesn’t seem to be the case here).
The Lanham Act — which is the federal trademark / false advertising statute — and similar state laws prohibit the use of misleading statements in commerce, and especially the use of names, likenesses, or symbols that misleadingly suggest that a product is being endorsed by someone who isn’t really endorsing it. But this too wouldn’t apply to political ads. Courts are rightly reluctant to judge what statements in political ads are merely misleading. Though the Lanham Act has at times been extended (often wrongly, in my view) to parody magazines and other speech beyond merely commercial advertising, I’m pretty sure that it wouldn’t be applied to a candidate ad such as this one.
The tort cause of action called false light invasion of privacy does apply to purely political speech. But it covers only a quite narrow category of speech — in this context, it would be speech that pretty clearly conveys a false impression about the plaintiff, and a false impression that most people would find highly offensive. A false ascription of support for a mainstream political candidate probably wouldn’t qualify as offensive enough to lead to liability. But more importantly, from all I hear of the ad, it doesn’t say or clearly imply that the people in the photograph all endorse Kerry. Maybe for a purely commercial ad, under the more relaxed standards of the Lanham Act, the ad’s use of the photo would be seen as misleading enough to be actionable. But I’m pretty sure that it wouldn’t be so seen as to a political ad, under the rules applicable to false light invasion of privacy.
But all this is just the legal analysis — as a political matter, the veterans’ objection might well be powerful and effective, either at getting the Kerry campaign to change the ad, or more broadly at hurting the Kerry campaign politically. I leave that speculation, however, to others who are more knowledgeable about the politics of such things.
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