KMK Law Intellectual Property Blog

Those of you following my blog (both of you) may have noticed that I’ve been suffering from a nasty case of writer’s block, as I haven’t posted anything for about 2 months.  Thankfully, I have been cured.  Lindsay Lohan is my muse.

If you watched either the Super Bowl or the Olympics, not only does this mean that you own a television set, but that you have undoubtedly seen this commercial for E*Trade.  Please watch it now, or this post will make no sense. 

If you’re like me, your immediate reaction to this video may have been any of the following:

• Man, I’m really sick of the E*Trade baby;
• Regardless, that’s a pretty sweet wolf-howl;
• I really need to get myself an E*Trade account, because it’s so easy to use, even a baby can do it.

What you probably DIDN’T think, however, is “hey, that baby girl in the black & white, heart-appliquéd onesy at the end of the video is supposed to be Lindsay Lohan.”  Apparently, Ms. Lohan disagrees.

Yes, folks, on March 8th, Lindsay Lohan sued E*Trade Securities LLC, E*Trade Bank and “Joe John 1 Through X” (I wonder if those “Joe John(s)” are kinda like “John Does” or whether a bunch of guys named “Joe John” actually work for E*Trade) in New York State Court for a violation of her right of publicity, claiming that E*Trade meant to suggest that the aforementioned cherubic infant was actually her. 

Somebody’s been drinking.  Again…

You can find a copy of the complaint here, thanks to the wonderful folks at TMZ.

The complaint is a full-blown laugh riot; to wit – Paragraph 2 reads as follows:  “That at all the times mentioned herein, and for many years prior thereto the plaintiff was and still is a professional actor of good repute and standing in the Screen Actors Guild.”  I think I would pay E*Trade to represent them in this case, just so I could answer that allegation, “Denied.”  Counsel, I shall leave you to your proof on that one…

At any rate, I won’t bore you with the details of the complaint.  You can read them yourself.   Suffice to say that Ms. Lohan alleges that “appearance of plaintiff’s look a-like [sic] name, characterization, and personality in [the commercial] causes the plaintiff to be identified in connection with defendant’s product and services” (emphasis added), and that she has been damaged to the tune of one hundred million dollars (not a typo).  Cue Dr. Evil.

With all due respect, I don’t think Ms. Lohan has a case.

Since this is a legal blog, I am compelled to mention why I think that.  Perhaps the two most famous “right of publicity” cases are the George Wendt case and the Vanna White case. 

In Wendt v. Host International, Inc., George Wendt (and John Ratzenberger), of Cheers fame, sued Host for placing animatronic robots of their Cheers characters, Norm and Cliff, in airport bars modeled on the set of the well-known television show.  In a decision by the 9th Circuit, which ultimately facilitated a settlement between the parties, the Court held even though Wendt and Ratzenberger conceded that they owned no rights in the characters per se, whether the animatronic robots bore a physical likeness to the plaintiffs (the commercial value of which the plaintiffs have a right to control under California law) was a question of fact for the jury to decide. 

Similarly, in White v. Samsung Electronics America, Inc., the 9th Circuit held that Samsung had violated Vanna White’s right to publicity in a commercial where a robot, meant to invoke Vanna White, was depicted on a futuristic Wheel of Fortune set turning letters on the game board.  The key in both cases was the fact that the robots actually were designed to look like George Wendt and Vanna White, respectively; and at least in the Samsung case, the fact that a Wheel of Fortune-type set was used contributed to the allusion.

Although 9th Circuit law is not precedential in the State of New York, the same general principles apply here.  The baby at the end of the commercial does NOT look like Lindsay Lohan.  The “Lindsay” baby does not appear in any context which would invoke, by nature of similarity, any of the films Ms. Lohan has been in (none of which I’ve seen, by the way).  The allegation of the publicity violation, apparently, turns on nothing more than use of the name  “Lindsay” – which, according to Reuters, was “in 2008 the 380th most popular name for newborn American girls…down from 241th in 2004, when Lohan's popular film "Mean Girls" was released -- and the reference to “Lindsay” as a “milk-a-holic,” which Ms. Lohan has apparently interpreted as a jab on her well-publicized struggle with controlling her intake of adult beverages.  Apparently, Ms. Lohan is suggesting that she is the only “alcoholic” person named Lindsay that could possibly be suggested by the E*Trade depiction. 

That position, frankly, is way funnier than the commercial itself…