What do Dustin Hoffman, Joe Montana and Vanna White have in common?
All have been plaintiffs in high-profile cases testing whether a person’s right to profit from celebrity overcomes a First Amendment right to talk about them or do a parody about them.
Joe Montana, the former San Francisco 49er quarterback, was thrown for a loss in a 1990s suit against a San Jose newspaper which reproduced, in poster form, actual newspaper pages containing his picture. Dustin Hoffman, too, lost a lawsuit which parodied the famous photo of him from the movie “Tootside,” in which he appeared in drag. But Vanna White had better luck when she sued Samsung Electronics for running an ad using a robot which resembled her as the “Wheel of Fortune” spokesperson.
These cases show that when you use a famous person’s likeness, you may get sued and the result of any lawsuit is not entirely predictable. A use which drives home a point, makes editorial comment on a celebrity, is predominantly a parody, or is newsworthy will generally be protected by the First Amendment and/or state law. A purely commercial use, on the other hand, is likely to expose the user to liability.
Bottom line here: you can generally comment on or criticize celebrities, but it’s risky to use their name or likeness without permission for purely commercial purposes.