“Trump Too Small” and the Right to Publicity
Art by Sierra Randel
Donald Trump’s legal team is having quite a time. The former President is facing 91 felony charges in cases across the country, appealing a verdict which ordered him to pay writer E. Jean Carroll $83.3 million for defaming her, and may have his properties seized if he cannot pay his $454 million debt from a New York fraud case. Ask any legal expert or lay person, and they will tell you that Trump’s chances of winning some of these cases are low. But there is one legal battle, also before the Supreme Court, that is likely to be decided in Donald Trump’s favor, Vidal v. Elster. This case raises a lot of important questions, such as what does it mean to exist in the public sphere in the social media age and what control do we have over our likenesses? While Trump himself is not a party in this case, his influence could not be more prominent. In Vidal, there is one part of Trump’s legacy, no, Trump himself, that sticks through the case all throughout. His hands.
In all seriousness, Vidal is an important case on many accounts. As yet another trademark case attacking the Lanham Act (the controlling trademark law in the U.S.), it has the potential to change the laws surrounding a $6.91 trillion industry that supports more than 50 million jobs and influence the ways in which brands can market themselves. More interestingly, it implicates the right of publicity, that is, the right of a person to control the use of their “name, likeness, or other indicia of personal identity… for commercial benefit”.
Some claim that this right lies within the realm of privacy law as it enables people to protect their likenesses from being used in the public sphere without their consent, others claim that it is primarily an intellectual property right, as it establishes and acts as a proprietary claim over their likeness and identity. This can make it a confusing area of law, explaining why so few people seem to know about it. But this area, primarily because it sits at the intersection of privacy and intellectual property, is an incredibly important tool in the modern era. The right of publicity enables all people, not just celebrities or public figures like Trump, to exercise autonomy over their identity. They can prevent others from profiting off their likeness by creating AI-generated deep fakes of them promoting Le Cruset giveaways (read, scam) or dental plans, which they did not consent to or get paid for.
The right of publicity, discussed in various briefs from both sides in Vidal v. Elster, is an area of law that could not be more important in an era where deepfakes and AI-generated images run rampant, enabling harmful uses of one’s face, voice, and personality to be created and spread like wildfire. While under-discussed in the Court’s oral argument, the Court has the opportunity to revitalize the conversation surrounding the right to publicity, a topic they have not touched in 46 years, and bring it into public view.
But Why is Trump Too Small?
Vidal begins, as many things involving Trump do, with the former President insulting someone. In the lead up to the 2016 election, Trump, referencing the Senator’s shorter stature, dubbed his competitor, Marco Rubio, “little Rubio”. At a rally soon after, Rubio noted how small Trump’s hands were, slyly noting that “‘you know what they say about guys with small hands”. This unleashed a media firestorm, with news outlets debating Trump’s hand size for months and one comparing a bronze casting of his hands to national statistics. At one point, Trump rebutted the claim that since his hands are small, something else must be small, stating “I guarantee you there’s no problem. I guarantee”.
Enter Steve Elster, a labor lawyer from California. In 2018, Elster decided to use this inane political exchange to make a statement on the ineffectiveness of Trump’s policy, and tried to register a trademark for the phrase “Trump Too Small” for use on hats and t-shirts. The t-shirts, which are currently available for purchase, showcase the “Trump Too Small” phrase, along with a hand gesture insinuating a small size, on the front, with a list of policy areas where Trump’s own policy has failed on the back.
However, Elster’s attempt to trademark “Trump Too Small” failed. Section 2(c) of the Lanham Act prohibits the registration of trademarks that “consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent”, and Elster most certainly did not have Donald Trump’s consent, thus disqualifying him.
Before going further, it is important to understand what trademarks actually are and what this section of the Lanham Act was intended to do. Trademarks specifically refer to a proprietary right over a “word, phrase, design, or a combination” of these aspects that indicate the source of a good or service. This includes the logos featured on a cereal box, the names of companies, or even a brand’s motto. These trademarked elements can be incredibly important to a company’s branding, but also ensure that the consumer can recognize and certify that a good is coming from a certain company. By having a trademark, the trademark owner is able to exclude others from using these elements, preventing others from using another brand’s success and profitability to falsely promote their products. The Nike Swoosh and “JUST DO IT” slogan are trademarked elements that increase a company’s marketability and signal to customers that the products are actually Nike products, as other brands cannot legally use these elements to market their own products. Much like copyrights, trademarks give their owners control over certain expressions.
The Lanham Act, passed in 1946, is the controlling trademark legislation in the U.S., and enables the national registration of trademarks and sets guidelines for what can be trademarked. Within Section 2, the Act prohibits registration for marks containing “immoral, deceptive, or scandalous matter”, those containing flags, those which are likely to cause confusion due to their similarity to other marks, and most importantly, those using one’s name without their consent. Section 2(c) was included in order to “preserve the dignity of those depicted without consent”, ensuring that a person’s likeness could not be commercially exploited against their (or their family’s, in the case of a deceased person) will. The core goal was similar to the modern right to publicity, as it sought to protect a person’s likeness and personality, preventing them from being falsely associated with different products.
So, after the Trademark and Patent Office denied Elster’s trademark registration, he appealed the decision twice, where the U.S. Court of Appeals decided in favor of Elster. The Court ruled that Section 2(c) was actually a violation of Elster’s First Amendment rights, as the mark “communicates his disagreement with and criticism [of Trump]...the government has no interest in disadvantaging Elster’s speech” by preventing him from registering the mark. More specifically, the Court noted that “the right of publicity does not support a government restriction on the use of a mark because the mark is critical of a public official without his or her consent”. Soon after the decision, the case was appealed to the Supreme Court.
At first glance, it seems like the Supreme Court is likely to rule in favor of Elster, as according to the lower court, this section of the Lanham Act violated the First Amendment, and the Court could easily apply precedents like Iancu v. Brunetti and Matal v. Tam–which ruled that the Lanham Act’s prohibitions on “immoral” or “disparaging” trademarks violated the first amendment–to rule in his favor. But looking deeper, it is unlikely that Elster will win this case, as upon closer examination his arguments are rather strange.
Elster claims that “Trump Too Small” is political speech and thus ought to be freely communicated, which is true. Yet, a trademark is in no way necessary for Elster to make this speech. Trademarks are not required to make, market, or sell t-shirts and hats, as having a requirement that all such products be government approved would be Orwellian. The only benefit for Elster is that it would grant him the ability to exclude others and punish them for infringement for using “Trump Too Small” on t-shirts and hats. So not only does Elster not need this trademark to make this political speech (thus defeating his claim that Section 2(c) prevents his speech), granting him this trademark would grant him sole proprietary rights over this political speech, enabling him to prevent other’s political speech.
As well, if Section 2(c) were ruled unconstitutional, any other person would be able to trademark another’s name without their consent, which would actually create more First Amendment issues than it would solve and would destroy the right to publicity. Anyone would be able to trademark someone’s name, or incorporate it into a trademark, then sell products using that trademark, sue other people for violating that trademark, all without the actual person providing consent or even knowing. A person’s name could be plastered on T-shirts with potentially crude messages, and they would not be able to do anything about it, as the trademark owner is simply utilizing their trademark as they please. If the actual person attempts to use their name on a product, advertisement, or even if they name their business after themselves, they could potentially be sued by the trademark owner. By enabling the non-consensual use of a person’s name in a trademark, the system could be abused to prevent others from making their own trademarks, expressing themselves and their brands that feature their names. Not only does this go against basic decency and common sense, it goes against the basic history of trademarks and the right to publicity in this country.
What’s in a Name?
The idea of a legal right to publicity itself arises from the idea of a right to privacy, but even in the late 1800s when the right to privacy began to bloom, it bore more similarities to what we consider to be a right to publicity. States created privacy statutes that prohibited “unauthorized use of the “name, portrait or picture of any living persons”’ and court rulings claimed that individuals had property interests in their names and likenesses. Overtime, an explicit right to publicity began to emerge, although it was considered an economic right, not a personal right, and focused more so on one’s ability to profit from their own likeness. In fact, the Supreme Court’s only decision on the right to publicity focused primarily on the economic harms that a person could face by having their image used without their consent. In 1977, the Supreme Court decided in Zacchini v. Scripps-Howard Broadcasting Co. that the right of publicity law did not violate the First Amendment by restricting the spread of broadcasts, as there was a state interest in providing an economic incentive (comparable to copyright and patent protection laws) for performers.
For centuries, there has been a history of people controlling the use of their name as a near proprietary interest and using trademarks as a way to indicate and protect a seller or creator’s identity. In 1873, the Treatise on the Law of Trade-Marks described how trademarks were directly connected to the person and personality of their owners. Around this time, nonconsensually using a person’s name for business purposes (typically through trademarks) was seen as an “affront to a person's autonomy interests, their dignity, and their natural right to the fruits of their own labor”. Similar to the logic of the right of publicity, it was believed that people had an inherent and inalienable right to over their own name and likeness, and that to use another’s name without permission would be to deprive them of that right.
Is the Right of Publicity Too Small?
Currently, there are 35 states which embrace a right to publicity through common law or statute, with California introducing such a law in 1972. Each state varies in its protections, as in 18 states the rights to a person’s name and likeness can continue and be transferred once that person has died. In California, the knowing use of a person’s name, voice, signature, photograph, and likeness in advertising without their consent violates the law, and the right of publicity can last for up to 70 years after the person’s death. In some localities, the right of publicity only applies to public figures, meanwhile states like Arkansas grant this right to all citizens.
In all of these states, however, the economic theory has won out. The right to publicity is not viewed as a personal right that all people possess, but is limited largely to the use of a (typically high profile) person’s likeness in advertising. Such a definition does not suit the modern world, especially given the rise of AI generated images and deepfakes. It is estimated that 500,000 video and voice deepfakes were shared on social media in 2023, and past studies have shown that 90-95 percent of deepfakes are non consensual pornography. Most recently, horrifying pornographic AI-generated deepfakes of Taylor Swift spread rapidly online, flooding social media websites to the extent that even X began regulating the site’s searches. And it is not just celebrities who can fall victim to this abuse, as civilian adults and children have also been subjected to pornographic deepfakes, as bad actors only need a few photos and videos of a person to be able to make a convincing deepfake. Even if the deepfake is not pornographic, it can still depict someone doing or saying something heinous.
This media uses the names, voices and faces of people without their consent, making it appear as if they are doing and saying things that they may never have considered in real life. However, the current laws do not provide much recourse. Copyright laws do not protect victims, as these are technically “transformative works”, meaning that the creator is likely to win the lawsuit, and most states do not have laws concerning the creation of non consensual deepfakes. The right of publicity has the most potential to protect against these harms, but the current model is not a suitable fit.
We need a personal-right based right to publicity that extends to all citizens, and we need it on the federal level. Our current system only has the capacity to protect high profile individuals from deepfakes, and even then it is primarily within the context of advertising and other economic rights. As well, because the right of publicity has only been implemented at the state level, we have a piecemeal policy that does not reflect the interconnected world that we live in. It is almost impossible to understand which laws will have jurisdiction in cases where the offender lives in an area with different laws than the victim, and by not having a federal law, we cause more confusion and chaos among the courts.
However, the right of publicity is not widely discussed outside of academic circles, making it hard to actually push for this change, but the Supreme Court has the chance to change that. Through its discussion of Section 2(c), Vidal v. Elster has brought the conversation about the right to publicity back to the Court. For the first time in 46 years, the Court has the ability to weigh in on how much a person can control their name and their likeness, and whether or not they can prevent it from being exploited for profit. People deserve a better system that enables them to exercise full autonomy over themselves, and that includes their public image. The Court needs to understand that through this case, they have the chance to expand the legal conception of this right beyond the economic, and into the personalistic. The right to publicity cannot be ignored for another 46 years, and the Court should not miss this opportunity.