Donald Trump’s release of a new fragrance line is reviving familiar questions about financial conflicts of interests, and generating new ones about the legality of using Jill Biden’s image to promote the products.
Trump announced a new line of perfumes and colognes on Sunday with a social media post that links to a website where it says some of the products have already “sold out” and others can still be purchased for $199 a bottle, or two for $298. The social media promotion includes a picture of the president-elect talking to the first lady on Saturday during the reopening of the Notre-Dame cathedral in Paris. The photo caption reads: “A fragrance your enemies can’t resist.”
During his first White House term, Trump regularly faced ethics questions about using the federal government he led for his own personal gain, including using his properties for both official and unofficial events. The issue was a defining and recurring theme throughout his first administration.
As he prepares for a second term, Trump still controls vast business interests and is launching new ones, and ethics experts say that using Jill Biden’s image shows how the president-elect continues to push boundaries as he prepares to take office. Others who have been tapped to serve in his next administration also are still pitching products, including Robert F. Kennedy Jr., the nominee to lead the Department of Health and Human Services, who recently appeared in an online video promoting his wife’s beauty line.
“I think this is a problem,” said Richard Painter, who worked as an ethics lawyer in former President George W. Bush’s White House. “But there’s no way to stop the president from selling guitars and Bibles and perfume. There’s no way to stop it, even though I think it’s use of public office for private gain.”
Trump’s use of Biden’s picture in promoting his fragrance line adds a new twist to the ethics questions surrounding his business interests. Most states prohibit an individual’s name, image, or likeness from being used for commercial purposes without approval under so-called “right of publicity” laws, according to legal experts.
If someone’s image is used to sell a product without approval, they can sue for compensation. But before that happens the White House likely would first send a cease and desist letter, said Virginia Canter, the chief ethics counsel for the government watchdog group Citizens for Responsibility and Ethics in Washington.
Jill Biden’s office and Trump’s transition team have not responded to a request for comment.
Legal experts say Trump’s use of Biden’s image to promote his products could be illegal.
“Biden would have a strong claim, under current law, that Trump’s use of her actual photo, in advertising, to promote a commercial product” violates legal protections against using an individual’s image for “commercial advantage without consent,” said University of Virginia law professor Dotan Oliar, an intellectual property expert.
However, the U.S. Constitution takes precedence over state law and Trump could use his First Amendment right to free speech as a defense if Biden sued. Rutgers University law professor Reid Kress Weisbord said he believes “there’s a good chance” that defense would be successful.
“Even though Trump used Biden’s name and likeness in a social media post about perfumes, which Trump may be selling for a commercial purpose, the content of that post mixes humor and politics in a way that almost certainly implicates free speech rights,” Weisbord wrote in an e-mail to USA TODAY.
For a First Amendment defense to succeed, Trump would have to prove he made a “transformative use” of Biden’s image, Weisbord said. The nature of his post – joking that a woman whose husband lost the 2024 presidential race to him “can’t resist” him – could help his case, the professor added.
“Trump would (likely) claim that he infused his post with politics and humor in a way that transformed the use of her name and likeness,” Weisbord said.
Jonathan Faber, managing partner at Luminary Group LLC and an attorney who specializes in intellectual property issues, said he agreed there could be “heightened First Amendment allowances” when dealing with a case involving political figures.
However, he said “these arguments typically apply to a third party critiquing a political figure directly, not one prominent political figure selling product featuring another public figure.”
“Whether this is worth pursuing or is best left alone may be driven as much by PR analysis as by Right of Publicity analysis, but it seems to be an unprecedented scenario,” added Faber.
Trump named his new line of perfumes and colognes “fight, fight, fight” to evoke the words he shouted after being shot in the ear at a rally in Pennsylvania.
For Biden, the Constitution could limit her ability to fight.
