Legal Commentary

I was almost hesitant to write about this one, thinking it might be a hoax, but apparently it is real: Actress Lindsay Lohan has sued E-Trade over the "Talking Baby" Commercial that aired during the Super Bowl and Olympics:

The complaint (filed in state court in New York) alleges that the ad used Lohan's "name, characterization, and personality for advertising purposes" without her consent. Interesting legal theory here: Lohan essentially is arguing that her "likeness" is a dim, promiscuous party-girl named Lindsay and that any dim promiscuous party-girl named Lindsay is, in effect, her. Implicitly, she seems to argue that, like "Madonna" or "Oprah," she has full ownership of, and association with, that singular name. She is asking for $ 100 million ($ 50 million actual damages, $ 50 million exemplary damages).

I admittedly do not know much about IP or right-of-publicity torts, but it seems to me this has to be sanctionable. For one thing, I don't know anyone who saw the ad and even thought of Lohan. For another thing, even if it were aimed at her, wouldn't this be an obvious example of satire or parody?

I asked my IP colleague, Hannibal Travis, for his thoughts, reprinted (without hyperlinks, unfortunately) after the break:

Apparently Lindsay?s Twitter brigade expressed confusion and outrage at the ad, leading to speculation in the blogosphere that these comments were what motivated her to sue.

Lindsay?s lawyers may have made the leap from bewildered tweets to legal action because trademark and right of publicity law have expanded in recent years to threaten movies, television shows, magazine ads, and books, as well as blogs, Facebook groups, and even Tweets. The case resembles Parks v. Laface Records, in which Johnnie Cochran?s firm successfully resisted summary judgment to extract an undisclosed settlement from the producers of the Outkast Aquemini album featuring the song ?Rosa Parks.? The court declared that a celebrity could obtain a common-law trademark in her name, and sue in addition for violation of the right of publicity. The Supreme Court contributed to the rise of such cases by allowing the promoters of the Gay Olympic Games to lose their First Amendment defense to a trademark claim in 1987. Parks? caretaker requested an absurd $5 billion, perhaps emboldening Lohan?s attorneys to seek an only slightly less preposterous $100 million.

As several blogs and legions of commenters have pointed out, however, this commercial is much more like a parody, such as the Barbie Girl song or the ?Naked Cowboy? blue M&M commercial. The claim probably filed by Lohan in New York, under Sections 50 and 51 of the New York Civil Rights Law, failed in the M&Ms case because the blue cowboy M&M was not the use of a person?s ?picture? in commercial advertising. If ?milkaholic? is supposed to be libelous, the court may very well point out, as did Judge Robert D. Sack of the Second Circuit in his famous libel treatise, that parody or fantasy is not libel and causes no ?reasonably cognizable harm to the butt's real-world reputation.?