Friday, March 12, 2010

Who Signed This Complaint?

So watch this e-trade ad, featuring those annoying talking babies, and ask yourself, whose right of publicity does it violate?

Of course! Lindsay Lohan!

That's right, Lindsay Lohan is suing e-trade (really!) on a claim that, because the "milkaholic" baby is referred to as "Lindsay," the ad exploits Lohan's identity to tout e-trade.

OK, there is something called the "right of publicity," and it does prevent companies from using the name or likeness of celebrities (or non-celebrities, for that matter) in their advertising without consent. And it's true, the cases show that a use doesn't have to involve the celebrity's full name or likeness to count -- it's enough that the ad uses something "associated with" the celebrity. Thus, a maker of port-a-potties was successfully restrained from calling them "Here's Johnny," because that phrase was so associated with Johnny Carson, and a maker of copiers was successfully restrained from running an ad featuring a robot in a blond wig in front of a board of big letters that was reminiscent of Vanna White on Wheel of Fortune.

But the key to both cases is that the ads conjured up the identity of the celebrities involved by using things strongly associated with them. Here, the only thing involved is the first name, "Linsday," which is a common name. Oh, and I suppose it's true that the ad calls the baby Lindsay a "milkaholic," and Lindsay Lohan has her own famous substance abuse problems. But it's beyond silly to say that the ad violates Lohan's right of publicity. Celebrities don't own their first names, particularly when the name is common. I suppose if the baby were called "Paris" there might be something to argue about. But this suit is a publicity stunt.

Maybe Lohan will be trying to suppress this ad too.

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