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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 111502
Experience:  Attorney practicing all aspects of copyright/trademark law
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I recently created a novelty called the Trump Talking Pen,

Customer Question

Hi, I recently created a novelty called the Donald Trump Talking Pen, which says "You're Fired" in Donald's own voice. The back of the packaging says "President Trump?" and lists some of Trump's philosophy (I listed only positive inspirational quotes). I have been making political novelties for years, and always enjoyed First Amendment protection. Now, however, I was just told that Border Patrol seized all my pens and won't let them into the country. They are threatening to destroy them all for copyright infringement. I tried explaining to the officer in charge that Trump is now a public figure, and I am legally permitted to make these pens. My Hillary Clinton Laughing Pens made it through customs with no issue. They've been featured in the media. But for some reason Trump products are being stopped at the border and not allowed into the country. Does anybody skilled in this area have any advice? I've contacted Senator Mark Rubio's office asking for their help as we're both from Florida.
Submitted: 1 year ago.
Category: Intellectual Property Law
Expert:  P. Simmons replied 1 year ago.

You are missing a key part of this.

I agree as a political figure, Trumps words are fair game.

But you are using "you're fired"...that is protected...or arguably protected, in the same way his tv show is protected.

So this is the problem you face...you are free to use words Trump uses on the campaign trail. But just because he is now running for office does not require him to forfeit his intellectual property rights to his past commercial enterprises.

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

Customer: replied 1 year ago.
I appreciate the advice, but if you don't have an understanding of First Amendment law then you will not be able to provide me with the correct answer. I know for a fact that Trump tried to tm You're Fired in 2004 and the courts ruled he couldn't.
Expert:  N Cal Attorney replied 1 year ago.

New Expert here.

I think the problem is using a recording of his voice. If you had an actor imitate his voice, that would be protected by the First Amendment but using a recording of his real voice may not be protected by the First Amendment.

I am reminded of the Air Pirates case,

http://www.kentlaw.edu/faculty/rwarner/classes/legalaspects_ukraine/copyright/cases/walt_disney_productions_v_air_pirates.htm

where the court held that the First Amendment allowed one to draw parodies of Mickey Mouse but not to draw Mickey Mouse itself.

I am sorry this is probably not the answer you had hoped for, but it would be unfair to you, and unprofessional of me, not to give you my honest opinion.

I imagine that changing out the voices would be faster and less expensive than getting into litigation with that person.

I hope this information is helpful.

Customer: replied 1 year ago.
Thanks for your reply but I see your expertise is not First Amendment law as it concerns political figures. There is a different set of rules for political candidates than your Mickey Mouse example, and it has nothing to do with using the voice. Sorry but I cannot accept your answer as valid.
Expert:  N Cal Attorney replied 1 year ago.

I am well aware of the cases interpreting the First Amendment. You are using a person's actual voice for commercial purposes without consent and that is unlikely to be protected by the First Amendment.

I am not here to just tell you what you want to hear, I gave you an honest opinion, which you remain free to reject.

You can be sued for this under California Civil Code § 3344, see

http://leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=03001-04000&file=3344-3346

Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

I am a DIFFERENT CONTRIBUTOR who has a civil rights practice.

I agree with my colleagues that this is not a 1st Amendment right here. While the term "you're fired" or the Paris Hilton phrase "that's hot" are not trademarked and you can use them, you cannot use the actual recording of their voice, even if they are a public figure, because they have mechanical license in their speech or performance and their voice saying those particular words would be protected. Even though you could for news purposes or satire or editorial purposes use their soundbite, this is selling commercial products for a profit and that would be where you are going to likely end up with the legal issue as both of my colleagues above correctly stated.

Now as a solution to this problem above, you could use a impersonator to impersonate Trump and pay that impersonator for license to use his voice on your product and you would be allowed to do so.

Customer: replied 1 year ago.
To N. Cal Attorney, If you're insulted by the fact that I disagree with you, that's your choice. No insult was intended.To Law Educator: My product is intended for parody and satire purposes, and it required the actual voice. Mechanical licenses don't apply in this case. The product is not being bought for use as a writing instrument, but to express a feeling and opinion about Trump's presidential bid.
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

A person’s right of publicity is the right to protect his or her name or likeness from being commercially exploited without consent and, potentially, compensation. Politicians don’t waive their right of publicity when they get elected to office (their right of privacy is a different matter), but many will not enforce their publicity rights because of the negative publicity it may invoke. However, there have been cases such as Arnold Schwarzenegger and even Vice President Agnew have aggressively policed unauthorized commercial use of their name, image and voice even while holding public office, even when done in parody. The problem is none of the cases ever had a court decision, they all settled quietly with the manufacturers and thus no ruling on the fair use exception has ever been given by the court in this type of case.

Right to publicity is something that is covered under state laws and varies a bit from state to state, but in general it requires the plaintiff to prove (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.

However, all of that being said, given that politicians and people running for political office tend to shy away from litigation, that is something for you to consider, but also consider the personality of the individual you are talking about here and whether or not he would still make a claim and pursue his right to publicity against you as he still has that legal right even if this is done in parody/satire.

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