- In Defense of Lindsay Lohan (But Not Of Her Legal Claims)
- October 5, 2011 | Author: James R. Molen
- Law Firm: Greenberg Glusker Fields Claman & Machtinger LLP - Los Angeles Office
I love Lindsay Lohan. Really, I do. I think she’s funny, smart, and an all around good time waiting to happen. Sure, as an actress, she’s had her share of ups and downs. But who hasn’t? As a singer...well...mostly just downs. She’s also been unrelentingly stalked by paparazzi for the entirety of her adult life, getting caught in far more than her share of compromising moments in the process. Well I say, leave Lindsay alone! If I had cameras following me since before I started shaving, I can assure you, it would not be pretty either (riotously entertaining, yes, but not pretty). So I try to cut Lindsay a lot of slack. But man, oh man, is her latest escapade testing the limits of my adoration.
Fresh off settling her lawsuit against E*Trade for a Super Bowl ad featuring a “milkaholic” baby named Lindsay and threatening (via Momager Dina Lohan) to sue the producers of Glee for some off-color Lohan-based Spanish lessons, Lindsay recently filed suit against rapper Pitbull for using her name in his song “Give Me Everything.” The offending lyric in question: “Hustlers move aside, so I'm tiptoein’, to keep flowin’ / I got it locked up like Lindsay Lohan.” Frankly, it is difficult to fully convey the absurdity of this lawsuit. Nevertheless, my enduring loyalty demands that I try.
Holding my nose and looking a little deeper, I see there are two claims apparently being made here: defamation and right of publicity. (From the outset, I should note that Pitbull’s stated defense of “I thought it would be helping [her] career and keeping [her] relevant” doesn’t fly.) But let’s parse each claim and see if there’s any chance that my hero will succeed. (Spoiler Alert!!! No, there is not.)
The defamation is claim is outrageous, egregious, preposterous, and...you get the picture. Earth to Lindsay: you WERE locked up, remember? It was all over the news, you know. Heck, even my Mom knew Lindsay was doing some time in county. To the extent Pitbull’s lyric could even be interpreted as a statement of fact (as opposed to a subjective opinion about his personal state of being, which it probably is) and could therefore even be actionable as defamation, it is 100% true, which is an absolute defense to this claim. Note that I did not just say this is “a defense.” I said absolute and I meant it. There is no grey area here, nor, for that matter, should there be (think First Amendment, the marketplace of ideas, personal liberty...you know, little things). If a statement is true, it is not defamation, end of story. For this reason, if no other, Lindsay’s claim is D.O.A. And I’m not talking the recently-deceased-but-still-warm-because-the-rigor-mortis-hasn’t-started type of dead. I mean completely toe-up.
(And all this assumes that “got this locked up” really is a reference to Lindsay’s jailhouse stint. Claims Pitbull — who was NOT, you see, out to “defamate” Lindsay — “When I say I got it locked up, if you’re from the neighborhood, when they say, ‘You got it locked up’ that means you run that area.”)
Lindsay’s second claim doesn’t fare much better. In general, the right of publicity protects against the unauthorized commercial use of a person’s name or likeness. That Pitbull made an unauthorized use of Lindsay’s name is pretty much a given. Where the claim fails, however, is that it was not used in a commercial. What’s that you say? You think I’m being too literal? Well I’m not. Under New York law (upon which the lawsuit relies), “commercial use” has been statutorily defined as “for advertising purposes” or, more specifically, as “solicitation for patronage intended to promote the sale of some collateral commodity or service.” As an artistic work — and here’s that pesky First Amendment at work again — Pitbull’s song simply doesn’t qualify.
Now, if your analytical juices are flowing, you can probably come up with all sorts of arguments for why, even under New York definition, Pitbull’s use is still commercial. For example, his song is intended to generate sales of his album, so, in that sense, it could be construed as a solicitation intended to promote that product, right? As it is, this legal ground has been covered by celebrities from Rosa Parks to Bobby Seale to Ginger Rogers, none of whom took kindly to uses of their names in various pop culture outlets. While these claims occasionally survive the initial stages of litigation — some of Rosa Parks’ claims based on the use of her name in the title of an OutKast song survived just long enough to result in a 2005 settlement — these types of claims usually lead nowhere but the dustbin of legal history.
Notwithstanding my disdain for her legal claims, I refuse to get on the Lindsay-bashing bandwagon. As far as I’m concerned, she’s gotten a raw deal in the press. She was genuinely funny in Mean Girls. Her role in Machete was awesome. Yeah, she’s got a wild streak, but I respect that. Given my choice of drinking buddies, she’d be near the top. Unfortunately, basic legal concepts just aren’t her forte.
That aside, I still adore her.