BUFFALO, N.Y. -- American courts are significantly expanding the
legal rights and privileges celebrities can command over others
using their names or likenesses. And a University at Buffalo Law
School professor is questioning whether these courts have gone too
Clearly, says UB Associate Professor of Law Mark Bartholomew,
the courts have taken a more liberal interpretation when it comes
to celebrities suing others for the use or even the implication of
their names, images or voices. This special legal privilege --
known as the "right of publicity" -- has expanded to what
Bartholomew calls "very subtle celebrity references," and beyond
the use of specific celebrity names or images.
(A video interview with Bartholomew is available here.)
But does the special protection the American judicial system has
advanced in the country's golden age of celebrity worship go too
far? Bartholomew says there are basic rights of free speech at
He makes his case in the article, "A Right is Born: Celebrity,
Property and Postmodern Lawmaking," forthcoming in the Connecticut
"Celebrity references are important tools for speech or personal
expression. They help us make important communicative points," says
Bartholomew, an expert on intellectual property law. "If I say
someone has a John Wayne-type political style, you know what I am
"Celebrity names and images are also key items for personal
So the issue is a matter of balance, Bartholomew says. Recent
decisions expanding the rights and lawsuit prowess of celebrities
come at a cost.
"We probably all went through that stage in high school where we
put pictures of celebrities up in our lockers or wore them on
T-shirts," Bartholomew says. "Sometimes the celebrity is
re-appropriated by audiences in an unforeseen way, like the gay
community's embrace of Judy Garland. There is something disturbing
about allowing the celebrity herself complete control over these
important tools for communication and the ability to close off the
ones she doesn't approve of."
The law is filled with easily recognized examples of this clash
between celebrity rights and free speech, with elements and
principles anyone from Super Bowl viewers to devotees of "OMG" and
other celebrity websites would easily recognize, Bartholomew points
His favorite: the "infamous" Lindsay Lohan lawsuit.
"Last year, Lohan filed a lawsuit in New York against E*Trade,
seeking $50 million in compensatory damages and $50 million in
punitive damages for using her celebrity persona in a 2010 Super
Bowl ad," Bartholomew says.
"Lohan's full name, picture and voice were not used. Instead, in
the ad, an off-screen female voice asks the on-screen E*Trade baby
through a video chat if 'that milkaholic Lindsay' was over when he
didn't call her the night before. This prompts another baby,
presumably 'Lindsay,' to step into the camera and ask 'milk-a
"Lohan argued that she was famous on a single-name basis (like
Oprah or Madonna) and also that 'milkaholic' was a reference to her
troubled past and would allow viewers to identify her. People were
upset with this case, angrily describing it in the blogosphere as
completely frivolous. But E*Trade settled the case for an
undisclosed financial sum, showing that E*Trade's lawyers at least
thought the law gave Lohan a chance of winning her case."
Lohan is only the latest Hollywood celebrity whose name
coincides with key court decisions on this relatively new legal
phenomenon called the right of publicity, which Bartholomew defines
as "an individual's right to the exclusive commercial use of his or
her name and likeness."
A landmark decision involved an icon of Baby Boomer American
celebrity, "Wheel of Fortune" game show hostess Vanna White.
"White sued Samsung Electronics for its advertisement featuring
a robot dressed in a blond wig, gown and jewelry standing next to a
letter board resembling the one used on 'Wheel of Fortune,'" says
Bartholomew. "Samsung never mentioned White's actual name or used
her photograph. Nevertheless, a court in California held that
Samsung indeed did violate Vanna's right of publicity."
The White case is important for two reasons, according to
Bartholomew. First, it provided a very generous legal precedent to
the definition of "What is use of a celebrity?" Second, the
decision gave what Bartholomew calls "short shrift" to First
Some states make an exception for "newsworthy" uses of a
celebrity. Other states allow First Amendment rights to trump
celebrity rights whenever the unauthorized user "transforms" or
significantly changes the celebrity image.
"I think it is good to have these exceptions," Bartholomew says.
"But they don't always go far enough. Artists might decide not to
use a celebrity in their work because they don't have to the
resources to challenge a lawsuit in court."
Since its founding in 1887, the University at Buffalo Law School
– the State University of New York system's only law school
– has established an excellent reputation and is widely
regarded as a leader in legal education. Its cutting-edge
curriculum provides both a strong theoretical foundation and the
practical tools graduates need to succeed in a competitive
marketplace, wherever they choose to practice. A special emphasis
on interdisciplinary studies, public service and opportunities for
hands-on clinical education makes UB Law unique among the nation's
premier public law schools.
The University at Buffalo is a premier research-intensive
public university, a flagship institution in the State University
of New York system and its largest and most comprehensive campus.
UB's more than 28,000 students pursue their academic interests
through more than 300 undergraduate, graduate and professional
degree programs. Founded in 1846, the University at Buffalo is a
member of the Association of American Universities.