Lohan in the Press Again in New York… But Should She Have Stayed In Hollywood?

Monday, March 29th, 2010 at 8:41 pm by Ari Taub

As has often been the case over the last several years, Lindsay Lohan has made it into the national news media. However, this time she is being referenced in the legal media as well. In an intriguing complaint, Lohan has sued the Internet-based stock trading company E*Trade for $100 million for what she alleges was a non-consensual “identifi[cation]” of her fame for purposes of trade and advertisement. The suit refers to an E*Trade commercial that aired during the Super Bowl and the Vancouver Winter Olympics. The ad at no time uses Lohan’s name, nor does it show a picture of her; rather, the entire “reference” was a part during the commercial in which a talking baby and his baby friend refer to a “milk-aholic Lindsay,” followed by the fleeting appearance of another female talking baby, adorned in a cute baby outfit who concludes the scene with “milk-a-what?” Apparently, Lindsey is of the opinion that the public’s familiarity with her name along with the reference to alcoholism—an issue that she had confronted publicly in the past—when taken collectively, lead the average viewer to conclude that it is Lindsey Lohan to whom the commercial makes reference.

According to the New York Post’s interview with Lohan’s lawyer, Lindsay “has the same single-name recognition as Oprah or Madonna,” which would bring her within the application of most states’ privacy statutes. If this were her whole argument, there would be no point in bringing the lawsuit. Clearly no one would contend that any time there is a use of the name Lindsay, Ms. Lohan’s rights have been violated. Rather, it is not just the name Lindsay for which this suit is brought; it is for the context and the message of the ad—one which Lindsay herself apparently took quite personally.

In contrast to Weatherproof’s use of President Obama’s picture, this advertisement, on the facts alleged, is highly unlikely even to survive summary judgment. The reason why, however, is surprisingly not entirely due to the merits of Lohan’s case; the fatal flaw for this cause of action may well be that it was filed in New York. It is difficult to justify this suit being brought in New York, which has a burdensome and strict statutory scheme, as opposed to, say, California, where both the courts and the applicable statute are far more flexible in their tolerance for these tentative right of publicity actions.

In comparing the two forums, one need not look further than the actual statutes under which a plaintiff could sue for the wrongful use of her fame. In New York, § 51 of the Civil Rights Laws restrict causes of action to complaints that specifically allege a use of the plaintiff’s “name, portrait, picture or voice.” In contrast, California’s privacy statute contains two separate provisions that give a plaintiff more maneuverability. First, in §3344(a), the statute permits recovery for the use of a plaintiff’s “likeness,” or “signature” in addition to the “name, portrait or picture” requirements found in the New York statute. These additional words, most notably “likeness,” provide for a plethora of additional claims, since it can be argued that one’s “likeness” can be manifested in many different ways. Second, a California court can allow an action to go to a jury, notwithstanding its inability to fit into the statutory scheme of subsection (a), by using subsection (g). This latter provision allows a judge to go outside of the strict construction of the statutory scheme of the former section in any case in which the judge feels that the common law would have offered more protection to the plaintiff for any given infringement.

Two cases illustrate the divergent approaches taken by the two jurisdictions. In White v. Samsung, a California appellate court upheld the denial of the defendant’s summary judgment motion in a case in which the defendant aired a commercial starring a robot adorned in a blonde wig in front of a “Wheel of Fortune” board. Vanna White, the one whom the advertisement referenced by use of the ad, sued for a violation of her right of publicity. The court held that although this was not “likeness” as per the normal sense of the word—as robots do not usually resemble people—the case should nonetheless proceed to trial because a court could reasonably find that the ad wrongfully evoked the celebrity of the plaintiff. Contrast that case with Oliveira v. Frito Lay, in which a plaintiff sued in federal court under federal and New York law for the use of her publicity in a commercial, which depicted Miss Piggy dancing to a song for which the plaintiff claimed she was famous. The plaintiff originally attempted to sue under a theory that the defendant used a “look-alike/caricature” (Miss Piggy), which, in conjunction with the playing of her song in the background, evoked an association of the celebrity of the plaintiff. Few would doubt that this case would survive summary judgment in California; under New York law, the district court dismissed this claim for failure to state a claim, and although the claim was later amended to include a violation by use of the plaintiff’s voice, this portion of the ruling stood.

California may be somewhat motivated by the strength of their celebrity population—and the boost that those celebrities give to their economy—to provide more protective publicity laws. Cases in New York seem to demonstrate New York’s intent to employ a far more rigid and predictable standard. Although this suit would probably not conclude with Lohan pocketing $100 million regardless of where it was brought, it seems an odd choice to go with the forum that is decidedly less favorable to the plaintiff. Maybe Lindsay heard there is more press in New York. . . .