The Volokh Conspiracy - Chelsea Clinton's Photo on Restaurant Wall:

People have been talking about this story:

The owner of a New York City restaurant is "heartbroken" over a letter he received from former President Bill Clinton's lawyer asking that a photograph of daughter Chelsea be removed from his eatery -— or face legal action.

The photo, taken of the former first daughter with Osso Buco owner Nino Selimaj, has been on display in the window of the Greenwich Village haunt for about five years, the restaurateur said. It was snapped when Chelsea, now 27, was having dinner there with a group of about 30 friends.

But Selimaj said he was shocked when he received a letter from Clinton's lawyer Douglas J. Band on Sept. 18 threatening legal action if the photograph of "private citizen" Chelsea was not taken down. The photograph is still on display near the front entrance of the restaurant -— only now, the letter is posted alongside it.

"We ask that you immediately remove that picture and any and all pictures displaying Ms. Clinton," the letter warns. "We reserve the right to exercise any and all options available to us if you refuse to comply." ...

Here's the quickie legal analysis:

1. The restaurant owner's actions likely violate Chelsea Clinton's "right of publicity." This right is recognized in one or another form by most states, but for our purposes the specific law is N.Y. Civil Rights Law § 51, which gives any person the right to sue over unauthorized use of her "name, portrait, picture or voice ... used within this state for advertising purposes or for the purposes of trade without ... written consent." Here, it looks like the photo is being used for promoting the restaurant to its customers, which makes it "purposes of trade" or perhaps even "advertising purposes."

2. Courts have generally held (and rightly so) that such rights of publicity usually don't block the use of names and likeness in newspaper articles, books, novels, movies, and the like, even though such uses may be for profit and distributed in commerce; the right tends to be limited, largely for First Amendment reasons, to advertising and merchandising (such as T-shirts, coffee mugs, and the like). But a restaurant's decor probably qualifies as a form of advertising or other "commercial speech" (a First Amendment term of art that refers mostly to advertising and similar promotion, not to speech such as a book or a newspaper that is sold in commerce). And while such "commercial speech" is considerably protected by the First Amendment, it's less protected than newspapers, books, and the like. The right of publicity, as applied to such speech, is quite likely constitutional.

3. All this is true, generally speaking, whether Chelsea is treated as a public figure or a private one. That distinction is important for libel cases, but generally not for right of publicity cases (though the damages may differ depending on the market value of the plaintiff's image).

4. As I noted above, New York law — unlike the law in many other states — provides that consent to use one's name or likeness for advertising or trade must be given in writing. This means that even if Chelsea willingly posed for the picture, knowing that the restaurant was taking it to be posted on the wall (far from clear), that's not enough; for the restaurant's use to be legal, there has to be a written permission from her.

5. The one possible defense the restaurant might have is the statute of limitations: In New York, Chelsea would have to sue within one year of learning that the restaurant was displaying the picture; I don't know when that was. (My sense is that the statute would also start running when a reasonable person would have learned that the picture was being displayed — but I suspect that under these facts it's not likely that a reasonable person in Chelsea's shoes would have learned of the picture before Chelsea actually did.)

6. Setting aside the legal question, my sense is that failing to remove Chelsea's picture is pretty rude, and I hope the restaurant owner's customers admonish him to that effect. A restaurant owner should have more respect for the wishes of his patrons; he's gotten five years of free publicity out of Chelsea's visit, and it doesn't seem right to me for him to insist on getting more after Chelsea asks — for whatever reason — that he stop. Conversely, if the first request to the restaurant was the letter, rather than a polite request by Chelsea (I have no idea whether that's so, though Ann Althouse suggests that it might have been), that too sounds a bit rude. On the other hand, if a first request was politely rebuffed, I don't see anything improper about the letter; it seems like a pretty normal nastygram, and one that is reasonably warranted by the facts as they appear.

	[Eugene Volokh, September 27, 2007 at 2:04pm] Trackbacks Chelsea Clinton's Photo on Restaurant Wall: People have been talking about this story: The owner of a New York City restaurant is "heartbroken" over a letter he received from former President Bill Clinton's lawyer asking that a photograph of daughter Chelsea be removed from his eatery -— or face legal action. The photo, taken of the former first daughter with Osso Buco owner Nino Selimaj, has been on display in the window of the Greenwich Village haunt for about five years, the restaurateur said. It was snapped when Chelsea, now 27, was having dinner there with a group of about 30 friends. But Selimaj said he was shocked when he received a letter from Clinton's lawyer Douglas J. Band on Sept. 18 threatening legal action if the photograph of "private citizen" Chelsea was not taken down. The photograph is still on display near the front entrance of the restaurant -— only now, the letter is posted alongside it. "We ask that you immediately remove that picture and any and all pictures displaying Ms. Clinton," the letter warns. "We reserve the right to exercise any and all options available to us if you refuse to comply." ... Here's the quickie legal analysis: 1. The restaurant owner's actions likely violate Chelsea Clinton's "right of publicity." This right is recognized in one or another form by most states, but for our purposes the specific law is N.Y. Civil Rights Law § 51, which gives any person the right to sue over unauthorized use of her "name, portrait, picture or voice ... used within this state for advertising purposes or for the purposes of trade without ... written consent." Here, it looks like the photo is being used for promoting the restaurant to its customers, which makes it "purposes of trade" or perhaps even "advertising purposes." 2. Courts have generally held (and rightly so) that such rights of publicity usually don't block the use of names and likeness in newspaper articles, books, novels, movies, and the like, even though such uses may be for profit and distributed in commerce; the right tends to be limited, largely for First Amendment reasons, to advertising and merchandising (such as T-shirts, coffee mugs, and the like). But a restaurant's decor probably qualifies as a form of advertising or other "commercial speech" (a First Amendment term of art that refers mostly to advertising and similar promotion, not to speech such as a book or a newspaper that is sold in commerce). And while such "commercial speech" is considerably protected by the First Amendment, it's less protected than newspapers, books, and the like. The right of publicity, as applied to such speech, is quite likely constitutional. 3. All this is true, generally speaking, whether Chelsea is treated as a public figure or a private one. That distinction is important for libel cases, but generally not for right of publicity cases (though the damages may differ depending on the market value of the plaintiff's image). 4. As I noted above, New York law — unlike the law in many other states — provides that consent to use one's name or likeness for advertising or trade must be given in writing. This means that even if Chelsea willingly posed for the picture, knowing that the restaurant was taking it to be posted on the wall (far from clear), that's not enough; for the restaurant's use to be legal, there has to be a written permission from her. 5. The one possible defense the restaurant might have is the statute of limitations: In New York, Chelsea would have to sue within one year of learning that the restaurant was displaying the picture; I don't know when that was. (My sense is that the statute would also start running when a reasonable person would have learned that the picture was being displayed — but I suspect that under these facts it's not likely that a reasonable person in Chelsea's shoes would have learned of the picture before Chelsea actually did.) 6. Setting aside the legal question, my sense is that failing to remove Chelsea's picture is pretty rude, and I hope the restaurant owner's customers admonish him to that effect. A restaurant owner should have more respect for the wishes of his patrons; he's gotten five years of free publicity out of Chelsea's visit, and it doesn't seem right to me for him to insist on getting more after Chelsea asks — for whatever reason — that he stop. Conversely, if the first request to the restaurant was the letter, rather than a polite request by Chelsea (I have no idea whether that's so, though Ann Althouse suggests that it might have been), that too sounds a bit rude. On the other hand, if a first request was politely rebuffed, I don't see anything improper about the letter; it seems like a pretty normal nastygram, and one that is reasonably warranted by the facts as they appear.