From E*Trade "Milk-aholic" Commercial

Everyone, even the folks who hate sports, watch the Super Bowl for the ads. This year featured another segment in the continuing “E*Trade-babies as stock-trading adults” ad campaign. A creepy-talking baby girl accuses her creepy-talking baby boyfriend of cheating on her with “Lindsay,” a suggested “milk-aholic.” Hollywood tartlet Lindsay Lohan is now suing the eponymous online trading giant; she is claiming that her image is being tarnished since she has “single-name” recognition, akin to that of Madonna, Cher or Bono, and that this ad tarnishes her image since the disreputable character in question is also named Lindsay.

This type of lawsuit falls under the classification of the Right of Publicity, or personality rights. These are the rights to own, license, and profit off of one’s image. Celebrities use this to prevent any random stranger from using their image to sell their product, and this is a broadly contested area of entertainment law. Unsurprisingly enough, the legislation on this subject varies state to state. The law in California has great protections for a person with “single-name” recognition. Civil Code section 3344 protects anyone from infringement on their “name, voice, signature, photograph, or likeness, in any manner” and prevents people from making money “on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent.” On face value, this seems to land in Lohan’s favor.

However, there are a couple of variables in this legal equation:

• The first factor is under which jurisdiction the decision is made. Courts are notorious for picking and choosing where a particular case’s standing will be enforced. The most famous case affected by this legal approach was a California case struggling to determine who controlled the rights to Marilyn Monroe’s estate, and most specifically her image. Although a California based company claimed ownership, the courts ruled that since the icon’s residence at her death was New York, the less stringent laws of that state applied. E*Trade is based in New York and Lohan is a California resident. Although this case isn’t exactly the same, it relates to bequeathing personality rights in a will as well as showing the propensity of the court system to take the many different interpretations of the 50 states into consideration in their decision.
• The next factor is whether or not Lohan has “single-name” recognition. This is the crux of her case. If the court rules she does not, then it’s safe to assume that the ad is referring to any random person with the name Lindsay. So unless Lohan’s lawyers can prove that she does have “single-name” recognition, there will no hope for her case. An informal poll says despite name recognition, she is hardly on the level of Oprah or Whoopi. If other polls return similar results, this case will most certainly go nowhere. But maybe that’s all that Ms. Lohan is looking for: nothing more than a little attention followed by a little sympathy.

Posted by Becky on  March 26, 2010 at 10:00 am.