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.

Barack and Michelle Obama should be highly flattered…or annoyed.

In recent weeks, both the President and the First Lady have been featured in advertisements, without giving their consent or approval.  First, Michelle Obama was featured in PETA’s newest ‘Fur-Free and Fabulous’ ad, alongside Oprah Winfrey, Carrie Underwood and Tyra Banks.  PETA admits that they did not ask for the White House’s consent to use the First Lady in the ad.  However, since the First Lady swore off fur in a statement back in June, PETA felt this was enough leverage to use Mrs. Obama in their ad.  Really, PETA?

Then, Mr. Obama was featured on a billboard (in Times Square, no less) by Weatherproof Garment Company, shown wearing one of the company’s jackets during a recent visit to China.  Again, Weatherproof did not ask for consent from the White House to feature the President in their ads.  “Weatherproof did not seek permission from the White House, and does not believe it was necessary to do so as the billboard does not claim Mr. Obama endorses the product.”  (Um, sure.  Let’s not neglect the fact that the the billboard’s tagline is, ”A leader in style.“)

To address the Weatherproof situation, White House deputy press secretary, Bill Burton, reiterated that “the White House has a longstanding policy disapproving of the use of the President’s name and likeness for commercial purposes.”  Makes sense!

After hearing about these two stories, I wondered if it would be viable for the Right of Publicity to extend to the First Family.  The definition of the Right of Publicity is ” …the right to prevent unauthorized use of one’s name or likeness by a third person for commercial benefit.”  And, isn’t commercial benefit what PETA and Weatherproof were ultimately seeking? Both ads would more than likely lead the public to believe that the President and First Lady endorse the products/organizations, thus leading to increased sales, donations, interest, potentials clients, etc.   Given this, isn’t it fair to say that PETA and Weatherproof both infringed on the President’s and First Lady’s Right of Publicity?

Other celebrities would think so!  Rapper 50 Cent recently sued WorldStarHipHop.com for using his image on their website without his permission.  Last year, Jennifer Lopez and Marc Anthony sued a stroller company for using their image to help sell one of their products – unauthorized, of course.   And, even Michael Jordan took on the big Chicago-area grocery stores, claiming Jewel and Dominick’s used his image (and Bull’s number!) without his consent.

But let’s face it – even though ‘normal’ celebrities can seek to protect their Right of Publicity through these lawsuits, I don’t think that it applies in quite the same way for the Obamas.  Imagine if Michelle Obama suddenly decided to sue PETA.  Imagine the backlash/global controversy/PR nightmare that would ensue.  Disaster, indeed.  PETA and Weatherproof  have execs smart enough to know this, which is why it’s amusing to me that both companies have ‘graciously’ complied with the White House’s request to take down the ads.  (Word on the street – Weatherproof is now seeking  to replace the Obama ad with one with Sarah Palin.)  These ads are merely both company’s shameless attempt to generate a buzz and gain some publicity.

Judging by the amount of blogs and articles out there on this subject (including this one), I’d say it worked…wouldn’t you?

Posted by Melanie on January 29, 2009 at 3:42pm.