The selfie that Red Sox slugger David Ortiz snapped with President Obama on Tuesday appeared to be all in good fun. And then we found out that Samsung orchestrated it all as a publicity stunt.
Press Secretary Jay Carney said Thursday that the White House, as a rule, objects to the president's image being used for commercial purposes. The Samsung stunt is no exception.
"We certainly object in this case,” Carney told reporters at the daily White House press briefing.
And as so often happens when the lawyers are called, no one will reveal what kind of talks were had.
"I'm not going to get into the counsel's discussions" with Samsung, he said. Samsung didn't return a request for comment.
There is a law forbidding the use of the presidential and vice presidential seals, as well as those of the House, Senate and Congress. Protecting the president's image, however, can be a bit murkier.
The idea of a White House objecting to commercial use of the presidency is nothing new. But the calculus changed when Obama, who is known for being extremely conscious of his image, came into office. Obama has embraced social media, especially photos and video that can be disseminated quickly and widely. The worldwide fascination with Obama and his family has not waned, and companies like Samsung have attempted to capitalize on it.
According to Bloomberg, the White House launched an offensive in 2009 to regulate the commercial use of Obama's image. Multiple companies, including Ikea and Ben and Jerry's, built advertising campaigns around Obama's "Yes we can" slogan and calls for change. "Yes Pecan" was actually an ice cream flavor for awhile. In reality, Ben and Jerry's was just trying to drum up excitement for a boring flavor, butter pecan.
Also in 2009, TY Inc., the company that makes Beanie Babies, released a pair of dolls named Sasha and Malia. The White House strenuously objected, and Michelle Obama said the company used "young, private citizens for marketing purposes." The company denied that the dolls were supposed to be the Obama daughters, but pulled them from the shelves after a month.
Part of the issue in regulating an image of the president is a little thing called the First Amendment, said Jonathan Band, an intellectual property lawyer in Virginia.
"Legally what they’re really able to do is somewhat limited because the First Amendment is such a powerful factor here," Band said. "When you're the president of the United States, then almost any use you can say, yes, it's commercial, but it does have this whole free expression overtone I think that will make it much more difficult to successfully enforce any kind of publicity rights in court."
The other issue, especially with a selfie like the one Ortiz took, is that an advertisement using Obama might not imply that he endorses said product.
"Given the implication of spontaneity that goes along with a selfie, the notion of endorsement and the suggestion that President Obama was endorsing Samsung, I don't think anyone would attribute it that way," Band said.
White House guests do not have to sign anything stipulating that images they take while visiting will not be used for commercial purposes.
The White House has been roundly criticized by news organizations for diminishing access to photojournalists, instead releasing official White House photos. A coalition of 38 news organizations, including The Washington Post, delivered a letter to the White House in November complaining about the reduced access.
The White House releases its official photos on a Flickr stream with quite a disclaimer for people who wish to use the photos for commercial purposes.
"This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House," it reads.
The most famous case of someone using Obama's image came before Obama won the presidency. The iconic Shepard Fairey poster was manipulated from a 2006 Associated Press image. The AP sued Fairey and the two settled in 2011.