He added: “If we were to get a letter or a call from the White House saying they didn’t approve of it or they didn’t like it or whatever, or they see it as an ad, we’ll do whatever we have to do. We’re not looking to alienate the White House.” But as of early Wednesday evening, the White House had not contacted Weatherproof, Mr. Cohen said.
Kevin M. Greenberg, a lawyer who handles intellectual property cases, said that while Weatherproof should have obtained consent from Mr. Obama as a matter of practice, “legally, the framework is that it’s very unclear where the First Amendment ends” and where public officials’ right to control their endorsements begins.
While Mr. Obama could probably get an injunction against Weatherproof’s use of his image, “the advice any good lawyer will give is sometimes there are fights not worth fighting,” said Mr. Greenberg, a partner at Flaster Greenberg in Philadelphia. “And if Barack Obama were to win this fight, he would in fact be rewarding the bad actor, simply because the fight itself” — over an injunction and damages — “would go on for a very long time and provide tremendous return to this company that’s stealing his image.”
Weatherproof’s history of attention-grabbing efforts suggests the company may be seeking controversy.
In 2008, it issued a release saying that it would run the shortest television commercial ever during the Super Bowl, at two seconds. The same day, it issued an update saying that, unfortunately, it had just learned that two-second Super Bowl slots were unavailable.
Also in 2008, Mr. Stollmack tried to wrap the guitar-playing Naked Cowboy, a street performer familiar to tourists, in a Weatherproof coat in Times Square, getting his picture taken while doing so.
The White House contacted People for the Ethical Treatment of Animals after it started running an anti-fur ad last week that praised Michelle Obama. Semonti Stephens, a spokeswoman for Mrs. Obama, said her office had not consented to that ad. The White House declined to comment on whether the matter had been resolved.
Katharine Q. Seelye contributed reporting.