The Smoking Gun has a copy of the complaint. Turning KIAs into political props is bad enough; getting rich off it — profits may reach $75,000 in this case — is execrable. Any tort lawyers in the audience want to skim through and weigh in on the likelihood of victory? If the parents can get it to a jury they’re golden, but can they? One of their claims, negligent infliction of emotional distress, is sketchy. Another, intentional infliction of emotional distress, is sturdier, but a judge might use the precedent of the Falwell case to find that the t-shirt maker’s First Amendment rights trump. (Falwell dealt with parody, not political speech, but it’s easy to imagine how a court might extend it.)
The real issue for the lawyers has to do with the remaining claim, the right of publicity. I’ve always understood that to be a specie of trademark jurisprudence: Your name and likeness can’t be used without your permission to hawk goods if people would be misled into thinking it was an endorsement. As far as I know, there’s no right of publicity at stake in a shirt that reads “Tom Cruise Sucks” since no one would be misled into thinking Tom Cruise had licensed it. Featuring the names of dead soldiers on an anti-war shirt isn’t quite as cut and dried as that, but I’ve personally never assumed that the families of the fallen have licensed the names and/or images of the troops used in those dopey mosaics of Bush’s face, so in no sense am I really being misled. The question, then, is whether the right at stake is a simple property right — you can’t use anyone else’s name for any reason, period — or whether there has to be some element of trying to “pass off” the name being used as an endorsement. Not sure where the law stands on that, but note what the Smoking Gun says in its introduction about the Arizona statute passed last year. I’m guessing the parents have an uphill climb here.