What does President Trump own?

April 5, 2019

If there is one singular, defining character trait of Donald J. Trump, it is this: he really, really likes putting the TRUMP name on things. Hotels, casinos, residential towers, television shows, books, golf courses, beauty pageants, steaks, universities, business plans, and on and on. It is kind of his thing. And he is exceptionally good at marketing the Trump name when he uses it.

The moment Donald Trump ran for president, and was subsequently elected – the ways he could use market that TRUMP brand grew exponentially. And I do not use the term “brand” lightly. Because for someone like me, the underlying question is this: what IP rights in his name and likeness does Donald Trump still own? Most recently, Trump has put the TRUMP brand on images of the White House. These images are now subsequently being sold online and at his various hotels.

I have written about some of these issues before,[1] and once again, I will not try to address any issues with the emoluments clause of the Constitution. Nor will this article be about the purported morality of such things, but instead an analysis of what IP rights are available for protection. Can President Trump own copyrights of his image? Can President Trump use the TRUMP name as a trademark and protect it like a private citizen? Can President Trump use White House and U.S. government imagery in tandem with his name and assert personal rights in these products? It is not such an easy answer.

Copyrights

United States Copyright law protects “original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”

Notably, however, copyrights are not extended to government works. More specifically, a “work of the United States government” being “a work prepared by an officer or employee” of the federal government, and “as part of that person’s official duties” is not afforded copyright protection under U.S. law. This can be tricky in application, however. A government actor cannot write a report, give a speech, take a picture or write a book that is both part of his or her duties as an official and also claim ownership of a copyright as the author. But that same actor can acquire a copyright interest by assignment or transfer if the original author is not a government actor, even if the work itself may look like a “government work.”

Put another way, Donald Trump cannot claim copyright in a speech he gives in his role as president. This is how CNN can replay Trump speeches at his rallies without acquiring a license that Trump would never give that network. For that is the classic example of a government work. But a non official third-party (oh, say, Donald Trump Jr.) can design a mug, a t-shirt, a paperweight, or even produce a documentary that is adjacent to President Trump’s official duties as president.

All of that would be protected by copyright. Junior could hypothetically then assign all copyright interest in these “presidential” products to his dad. President Trump could then assert copyright claims against anyone who infringes it thereafter. As the owner of the copyright (so long as it is registered first – shout-out to SCOTUS for that). Just like a private citizen.

This is entirely consistent with current copyright law. Donald Trump can therefore own copyrights, even as the President of the United States of America. It just may be slightly convoluted. He just cannot be the original author of a copyrighted work if it was created in his role as president.

Trademarks

Trademark law operates differently than copyright law. First, as I have written about before, copyright law is expressly granted by the U.S. Constitution. Whereas trademark rights are indirectly derived through Congress’ use of the Commerce Clause and trademark specific statutes, namely the federal Lanham Act. Trademark rights can also be derived through state law, while copyright is exclusively a federal issue that cannot be litigated in state courts.

Notably, trademark rights are designed to protect the public, even though the owner of a trademark can profit from use of the mark in commerce. For example, presidential campaigns routinely seek to register campaign slogans and imagery as trademarks. Trump’s campaign was by no means the first to aggressively use the TRUMP name everywhere it could. Barack Obama’s campaigns actually sued people for trademark infringement, though the technical owner of the trademarks at issue was a corporate entity and not President Obama himself.

But, yes, in theory, Donald Trump can continue to use the TRUMP name as a trademark for all sorts of goods and services – even in the scope of his role as president – and subsequently register these same TRUMP trademarks and enforce them as a citizen. Trump, however, uses the corporate structure even more than Obama did and he has acquired numerous TRUMP-style trademark registrations over time through his various corporate entities.

The flip side is that a private citizen is unlikely to be able to use the TRUMP name as a trademark without first acquiring Trump’s permission. And then, even if/when he dies, trademark rights will not be afforded in the TRUMP name until his widow passes.[2] (This particular statutory provision dates back to FDR and Eleanor Roosevelt.)

Trademark rights are therefore the cleanest path for Donald Trump to protect the TRUMP name and brand, even while he holds the office of President of the United States of America.

Assuming Donald Trump is not an inventor and is not seeking to patent any business methods of the presidency, there is one last nebulous IP category to address. Publicity rights. Also known as “likeness rights” for Trump-based imagery.

Publicity Rights / Likeness Rights

Unlike copyrights and trademarks, there is no federal statute protecting likeness rights. This is a state law issue, and it varies state-by-state. Without diving too deeply into any specific issues, however, it is important to note that just because Donald Trump is the president does not put his name, face, or likeness in the public domain. Just because he is president does not give anyone carte blanche to use the TRUMP name or Trump’s own image in conjunction with defamation or slander. Publicity rights exist primarily to protect people who have acquired some level of fame or recognition. This most certainly includes President Trump, who may be the most famous or noteworthy person in the world today. Of course, because he is a political and public figure, the standards for libel and slander are higher and Trump is well aware of this fact. Begrudgingly so.

Given the fact-intensive nature of likeness rights, in addition to varying state laws that protect publicity rights, it is hard to provide a “yes” or “no” analysis for what you can or cannot do with Trump’s face, profile, silhouette, or anything that might visually conjure up his image in your mind. Publicity rights in the abstract are therefore be difficult to quantify or derive. This is intentional because bright line rules for likeness rights might hinder creative works.

For example, anyone can use President Trump’s name for commentary or criticism or news reporting. Kind of like what I am doing with this very article. A third-party, however, cannot use Trump’s name or even his image for pure advertising purposes or to suggest that Trump endorses a particular product or company. Nor can you use Trump’s face for knowingly false advertising purposes. Not only would that incur potential administrative penalties, but Trump could bring a civil action under the Lanham Act for such conduct. Publicity rights are therefore best seen in this context as gap-fillers of a sort that connect an individual’s own trademark and copyright interests, while being balanced against the public’s fair use and First Amendment / free speech interests and considerations.

Accordingly, any such distinctions are blurry. The primary takeaway should be that any state-based rights of publicity or likeness rights that may be afforded to Trump in his individual capacity (even as president) cannot override a private citizen’s right to use his image or likeness for parody purposes. For this directly triggers free speech and First Amendment concerns. Which, if you think about it, is the way it should be. In theory, you want to give a person (even Trump) the right to control his own name and likeness, but not at the expense of the public’s right to commentary or criticism, especially in creative works.

But in the end, yes, President Trump can claim publicity rights and such rights need to be considered before using the TRUMP name in any public or commercial context. For we all know how litigious Donald J. Trump can be.

[1] I needed to write something and “Donald Trump” is the epitome of clickbait. There will almost certainly be overlapping points across my two articles.

[2] See generally 15 U.S.C. § 1052(c)