Can Lindsay Lohan muzzle free speech?

U. BUFFALO (US) — Rights of publicity that give star power celebrities exclusive control over the use of their names, images, and voices may be putting basic rights of free speech in jeopardy, a new report finds.

“Celebrity references are important tools for speech or personal expression,” says Mark Bartholomew, associate professor of law at University at Buffalo.

“They help us make important communicative points. If I say someone has a John Wayne-type political style, you know what I am talking about.  Celebrity names and images are also key items for personal development.”

So the issue is a matter of balance, Bartholomew says in a paper to be published in the Connecticut Law Review, but 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,” he 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 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’s favorite is 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 what?’

“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 based on right of publicity.

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. 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 legal precedent to the definition of “What is use of a celebrity?”  Second, the decision gave what short shrift to First Amendment concerns.

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.”

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