Ask the Answer B!tch

James Breeden, ©PacificCoastNews.com

If I try to profit from a celeb's image by, say, selling T-shirts advocating "Paris Gave Me Speidi," could I be sued?
—the_wackness, via Twitter

See, I don't even know what that phrase means.

But your answer is this: If you actually made that T-shirt, and Speidi wanted to sue, it could, and it would probably win. (And the "it" is not a misprint.)

The reasoning behind that statement is generally referred to by lawyers as "right of publicity," and if Speidi loves anything more than itself, it's publicity...

So why isn't your T-shirt protected under free-speech rules? Well, the general dividing line between a lawsuit-free lifestyle and a string of court dates is whether your T-shirt falls under commercial speech versus commentary or satire. The former means you have to pay Speidi. The latter means you win—but then again, either way, you're making Speidi more famous, so I'm not sure anybody wins.

"If it's classified as commercial speech," mulls Jeffrey Glassman, partner in Ervin Cohen & Jessup's business and corporate practice, "then you don't have protection from a lawsuit. It doesn't matter if you're using just their name or their likeness or both."

A good recent example of the dividing line involves Dustin Hoffman. In 1997, he sued Los Angeles magazine. The mag had published a special Hollywood issue and used a digitally altered image of Hoffman for its cover.

Hoffman sued for more than $1 million, charging that the photo violated his right of publicity. An appellate court eventually favored the magazine because the image was used mostly for commentary, like most magazine covers—not straight-up commercial gain. With a T-shirt, however, a court would likely find that you're making something strictly for profit, and therefore would have to pay Speidi.

There's one loophole that's possible, here, but I don't think you'll fit through it.

Some T-shirts with celebrity names may be considered commentary if they are in response to specific news events, entertainment attorney Christopher Cabott says.

For example, he says, " 'Free Paris' T-shirts were a response to a newsworthy event—her incarceration."

Ditto with those "Team Jolie" or "Team Aniston" shirts, he says. "Believe it or not, those shirts and their messages in response to news and media reports are similar to shirts saying 'End the War.' The statement is in response to events and that is protected by the First Amendment's Freedom of Speech.'

"But 'Paris Gave Me Speidi' is not in response to a newsworthy event. I also don't see any parody."