Via Lowering the Bar comes this extremely interesting story about French President Nicolas Sarkozy's lawsuit against manufacturer K&B Editions for selling a "Sarkozy voodoo doll" avec aiguilles that not only misappropriated his image but encouraged violence against him. A court agreed that the doll insulted the President's dignity, awarding him one Euro. The package including the doll must now carry a warning:
It was ruled that the encouragement of the reader to poke the doll that comes with the needles in the kit, an activity whose subtext is physical harm, even if it is symbolic, constitutes an attack on the dignity of the person of Mr. Sarkozy.
Now, this parody doll does make fun of Mr. Sarkozy. But to sue over it draws more attention to it than ignoring it would have done. Other K&B targets, including Segolene Royal, have not sued. K&B has sold out its first edition of the dolls and is ordering up more (these will carry the warning label). Further, the court's balancing of privacy rights and misappropriation against free speech and parody suggests that it was really at some pains (no pun intended) to figure out exactly where to draw the line here. It denied the injunction that the President requested, finding that such a remedy just goes too far. But it did award him a nominal amount in damages, and it required the defendant to pay legal costs. So the result is that the doll remains on sale, and will probably earn the firm lots more in customers and in publicity. Note also that the target of the lawsuit seems to have been the doll, and not the book it accompanies, Nicolas Sarkozy: Le manuel vaudou.
In the U.S., for example, I'm not sure a political figure, President Bush or Senator (and apparently soon-to-be Secretary of State) Clinton, for example, could win a suit for misappropriation of his or her image over the sale of such a doll. First of all, the image looks to me as if it's been transformed, at least a little, and that may be enough to protect it (see Comedy Three Productions, for example, and that line of cases). Second, this is political speech, and it's parody, protected by the First Amendment (see Hustler v. Falwell). Note, however, that Arnold Schwarzenegger sued an Ohio company over a bobblehead doll back in 2004; the suit was eventually settled when the company agreed to modify the doll.
Arguably, a political figure might say that the "subtext" here is physical harm, as President Sarkozy does. A user might intend, through a voodoo doll, to cause harm, if the user believes that harm can result. But according to voodoo theory, the doll must be authentic and created especially to affect the victim. I don't think K&B intends these dolls to cause the President physical harm (and the President doesn't actually argue that), because there's no evidence that K&B believes that the dolls actually can cause him harm. These dolls are manufactured en masse, not prepared in the traditional voodoo way intended or aimed specifically at a victim. Does President Sarkozy himself really believe that someone could cause him physical harm through use of these dolls? Does he believe that someone could cause him spiritual harm? Does he believe in voodoo? Is he suggesting that K&B's purpose in selling the dolls is to encourage people to think about harming him, other than to make fun of him? Obviously not, since he hasn't alleged that. He's clearly not happy that the company has reproduced some of his comments (including "Get lost you pathetic a***hole" to a voter who didn't want to shake his hand).
If that is the kind of harm he's complaining about, then perhaps politics isn't a good career for him, at least not in the U.S. Here, a court would probably not hear his complaint with much sympathy. "Generally speaking, the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most, if not all, jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently "outrageous." But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment." Hustler v. Falwell, 485 U. S. 53 (1988).
What a U.S. politician might argue is that the buyer of the doll (not K&B) might advocate actual (as opposed to dignitary) harm to the real person represented by the doll. But even so, the political figure would have to overcome the Brandenburg elements--advocacy, incitement, imminent harm--in order to overcome a First Amendment defense. That, in my opinion, is pretty difficult, when you're arguing that the instrumentality of harm is a voodoo doll, and even if you are arguing that the act itself--using the doll--could encourage a third pary to another, more physical act. I won't get into whether an unhappy buyer, having discovered that the voodoo doll actually doesn't work, has a claim against the manufacturer.
Here's more on the Sarkozy lawsuit from the International Herald Tribune. Want to buy the Sarkozy doll and accompanying manual? It's available from Amazon France after December 15 (the site is sold out right now).
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