Dr. Jill Biden Should Sue Trump for $100 Million…Here’s How

Written by Ben Meiselas

Donald Trump spent the past week of the transition selling his latest product: “Trump Fragrances.”

The fragrances include a cologne and a perfume he calls the “Fight Fight Fight Collection.” Trump made multiple social media posts advertising these fragrances, which he sells for $199.

The sale of these fragrances by Trump is utterly humiliating to our country. It’s about as embarrassing as it gets that this individual will be in the White House. It baffles me how and why this behavior is accepted and normalized by corporate media. Then again, this is why corporate media is in a death spiral of its own.

In addition to the disgrace of selling fragrances during the transition period, Trump has decided to willfully and maliciously misappropriate the name, image, and likeness of First Lady Dr. Jill Biden to sell his Trump Fragrances. As part of Trump’s advertising campaign for the Fight Fight Fight Fragrances, he uses an image of himself sitting next to Dr. Jill Biden with the slogan:

“A fragrance your enemies can’t resist!”

Here is the advertisement:

As you may know, in addition to my work at MeidasTouch Network, I am a law professor at USC Law School. One of the practice areas I specialize in is “name, image, and likeness law,” or NIL law. This refers to the rights public figures—and even private individuals—have over how they are portrayed or depicted in public by others.

Put simply, when someone uses your name, image, or likeness for commercialization (e.g., to sell things), they need your permission. Usually, this means you need to license your name, image, or likeness for another party to use it in connection with their advertisement. They can’t just use you without your consent. If someone uses your name, image, or likeness to sell things without your consent and permission, it’s called “misappropriation of name, image, and likeness.”

Whether codified in a written law (a statute) or recognized by courts as an implied legal claim (common law), almost every state recognizes a legal cause of action for misappropriation of name, image, or likeness. This is sometimes referred to as a violation of someone’s “right to publicity.”

If your publicity right has been violated, you can sue for money. Lots of money.

Celebrities and public figures have recovered tens of millions of dollars as plaintiffs in lawsuits where they sued people or entities who violated their publicity rights.

In order to successfully sue for violation of publicity rights or misappropriation of name, image, or likeness, a plaintiff must prove four elements to make their claim. To win a right of publicity case, the plaintiff must generally show that the defendant: (1) Used their name, image, or likeness, (2) Did so without consent, (3) Used it for commercial purposes (e.g., advertising, product promotion), and (4) Caused the plaintiff harm or potential economic loss.

A good example of a recent case where a celebrity successfully sued for violation of their name, image, and likeness rights involved a lawsuit filed by the rapper T.I. Harris and his wife, singer-songwriter Tameka “Tiny” Harris.

On September 23, 2024, a California federal jury awarded the couple $71 million in their lawsuit against toy company MGA Entertainment (MGA). The case centered around MGA’s L.O.L. Surprise! O.M.G. line of dolls.

T.I. and Tiny alleged that seven of the dolls in the line misappropriated the name and likeness of a teen pop group Tiny helped create in 2009 called the OMG Girlz. (See National Review, 9/30/24, Leah George, citing MGA Entertainment Inc. v. Harris, U.S. District Court for the Central District of California, No. 2:20-cv-11548.)

Now, back to First Lady Dr. Jill Biden’s potential legal claims against Trump.

Dr. Biden’s legal claim against Donald Trump for violation of her right of publicity is far stronger than the claim by T.I. and Tiny Harris above, where they received $71 million from a jury.

Donald Trump didn’t simply use a photo that resembles Dr. Jill Biden. Trump engaged in the most open, obvious, and egregious violation of Dr. Biden’s publicity rights by using an actual photo of her and adding text to mockingly suggest she endorses the product.

In my opinion, as an expert in this area of law, it’s an open-and-shut slam-dunk case if Dr. Biden chooses to file a lawsuit against Trump. Further, she would almost certainly be entitled to punitive damages, as it’s obvious Trump acted intentionally, wantonly, and maliciously toward Dr. Jill Biden with his misappropriation.

How would we calculate Dr. Biden’s damages? Well, Donald Trump sells his fragrances for $199. His products usually generate between $5–20 million in revenue. If I represented Dr. Biden, I would find out how much Trump made off the fragrances in discovery and demand that amount.

Assuming a jury awarded Dr. Biden between $10–20 million in compensatory damages and 5–7 times that amount in punitive damages, it’s easy to see how the damages a jury could award Dr. Biden could exceed $100 million.

In case you were wondering, the Supreme Court’s recent “absolute immunity” ruling would not provide Trump with immunity here.

Trump’s violation of Dr. Biden’s publicity rights took place before he is back in office, and the sale of fragrances is purely private in nature and would not be considered an official act. Thus, Trump would not be entitled to any immunity if Dr. Biden sued him.

Dr. Biden will likely have at least two years to decide whether to sue Donald Trump on the claims outlined above based on the statute of limitations. She doesn’t have to file a lawsuit right away and can decide to do so in the future. She has time.

Ultimately, Dr. Biden may decide suing Donald Trump for these claims is beneath the office of the First Lady, and she may not want the drama associated with suing him for violations of her publicity rights.

If Dr. Biden consulted me, my response would be that we are in unprecedented times where Trump has destroyed the seriousness of the Oval Office. Trump must be held accountable, or he will continue to violate her publicity rights.

We will see if Dr. Biden sues Trump. Regardless of her decision, this article outlines what the lawsuit would look like, what a likely outcome could be, and how she could do it.

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