ACTRESS CLAIMS BABY GIRLFRIEND COMMERCIAL IS ABOUT HER
Actress Lindsay Lohan is once again in the news. This time, however, it’s not because of what Lohan and her running buddies have done in some nightclub, or the latest in the ongoing feud between Lohan and her father. Instead, Lohan has made the news by filing a $100 million lawsuit against the online stock trading company, E*Trade, over their “milkaholic” baby girlfriend commercial.
Lohan’s break as an actress came in the 2004 motion picture “Mean Girls.” After that film, Lohan tried to expand her influence into the music arena, releasing a couple of albums to mixed reviews. Lohan graced the cover of Vanity Fair magazine (right) with a pictorial spread that evoked images of Marilyn Monroe. However, instead of becoming a “triple threat” — actress/model/singer — Lohan has become more widely known for being fodder for tabloids and paparazzi. With stories about her lesbian lover and their widely reported breakup, stints in rehab, car accidents, public feuds with her father and “overexposed” pictures of Lohan all over the ‘net, Lohan is now the symbol of young Hollywood and their unabashed desire to have a good time.
Now comes Lohan’s latest foray into the news: a $100 million dollar lawsuit against E*Trade for their latest “baby” commercial. After the jump, I’ll detail why Lohan’s lawsuit has the feel of a publicity stunt. And if you haven’t seen the commercial which debuted during the Super Bowl, you can view that after the jump as well.
LOHAN’S CLAIM IS WEIRD
The essence of Lohan’s claims is that E*Trade’s latest baby-talking commercial — featuring a “milkaholic” female baby named “Lindsay” — was about her. Lohan alleges that the ad violates her right of publicity — her right to protect her name and likeness from unauthorized commercial use. In other words, Lohan’s lawsuit alleges that E*Trade used her name — “Lindsay” — to capitalize on her fame and celebrity and imply an endorsement of E*Trade where none exists. Lohan and her lawyer seek $100 million in damages — $50 million compensatory (i.e. actual damages) and another $50 million in punitive damages. Lohan also seeks to enjoin E*Trade from airing the commercial again. You can view the complaint (courtesy of TMZ) filed on Monday, March 8, 2010 here.
Lohan is going to have some issues with her claims. First, her lawyer will likely regret claiming that the E*Trade spot is a “parody” of Lohan. The Ninth Circuit has repeatedly recognized that a celebrity’s right of publicity is subject to First Amendment limits when the use is “transformative.” That means that if the offending use contains other elements, like parody, which transform that use beyond the use of the celebrity’s name and likeness, then the publication is protected by the First Amendment. It’s hard to believe that what Lohan’s attorney admits is a “parody” would not be viewed as transformative. Lohan’s claim is therefore barred by the First Amendment.
More importantly, Lohan’s claim depends on her being recognized “by one name only” — Lindsay. Lohan’s lawyer claims that Lohan has achieved such single name recognition — like Madonna or Oprah. That argument seems preposterous on its face. Searching the imdb.com database of entertainment-related names for “Lindsay” does not generate a result with Lohan’s profile. You can view the five results for yourself here. Indeed, when the spot premiered during the Super Bowl, I didn’t think of Lohan when the spot used the name “Lindsay.” If “Lindsay” does not bring Lohan instantly to mind, then E*Trade cannot be said to be using Lohan’s name or likeness in the ad.
THE LIKELY RESULT
Whatever prompted Lohan and her lawyer into suing E*Trade, the likely result of this case will not be good. If Lohan continues with her claim, I am confident that a competent defense will be mounted and that the case will be dismissed. Lohan filed this case in New York. Had she filed this case in California, the repercussions from this filing would include the likely award to E*Trade of its attorneys fees in defending this meritless case. Claims for misappropriation under California’s statutory scheme would result in attorneys fees and costs awarded to the “prevailing party.” I previously warned of potential “blow back” — unintended negative consequences — resulting from filing weak lawsuits to protect celebrity clients. This is one of those cases.
I predict that Lohan will quietly dismiss this case soon — before E*Trade has to defend itself. If she doesn’t, then the consequences may be as entertaining as some of Lohan’s other forays into the press — at least to us lawyers.