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2% Credibility: Lohan v. E*Trade
Posted by
Mona Ibrahim
on March 9, 2010
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Lindsay Lohan’s right of publicity suit against E*Trade, filed in the Supreme Court of Nassau County, New York on Monday, is a novel approach for celebrity plaintiffs who may otherwise be defamation-proof. Unfortunately for her it is likely to get short-shrift from the Courts.
The suit arises from an E*Trade commercial (see below) that aired during the 2010 Super Bowl and Olympics. In the ad an infant boy describes his evening’s adventures to a female infant. At the end of the commercial, the female baby asks if “that milkaholic Lindsay came over.” A third baby then appears, saying “Milka-what?” in a California-girl squeal. Apparently Lohan relies on this third baby and reference to “that Milkaholic Lindsay” in asserting her suit.
Lohan’s complaint cites New York’s Right of Publicity code, which reads in relevant part that “A person, firm or corporation that uses for advertising purposes . . . the name, portrait or picture of any living person without having first obtained the written consent of such person . . . is guilty of a misdemeanor.” The complaint asserts that use of Lohan’s “name, characterization, and personality for advertising purposes” is a violation of NY State privacy law.
This isn’t a particularly well thought-out complaint. Setting aside the commercial value of Lohan’s reputation as an alcoholic, the statute doesn’t prohibit the use of “characterization” or “personality”. It doesn’t even go so far as to prohibit use of one’s “likeness”, as is the case under California’s analogous statute. It only prohibits the use of one’s “name, portrait or picture.” And NY courts have determined that “Name” as used in the statute means a person’s full name and that the portrait or picture in question must recognizably be of that person. Neither is the case here.
While Lohan’s suit is clearly a back door approach to stem parodies aimed at her character, it will likely only further damage her credibility and reputation. Unless it is just a publicity stunt, in which case it is an unqualified success.