Fans of both celebrity train wrecks and intellectual property law got a twofer with the recent news that actress Lindsay Lohan has filed a $100 million lawsuit against online brokerage E*TRADE for running a TV commercial that features a “milkaholic” baby named Lindsay.
The basis of Lohan’s lawsuit is a claim of misappropriation of her rights of publicity. New York law prohibits using, “for advertising purposes…the name, portrait or picture of any living person without having first obtained the written consent of such person….”
In the commercial, the protagonist, a male infant with the swaggering attitude typical of a twentysomething Maxim reader, calls his girlfriend via webcam to apologize for not calling the evening before. E*TRADE Boy freezes in panic when she asks, “And that milkaholic Lindsay wasn’t over?” A female infant pokes her face in front of E*TRADE Boy and asks the camera indignantly, “Milk-a-WHAT?” Lindsay the Baby does not bear any noticeable physical resemblance to Lindsay the Actress (below).
The fact that the E*TRADE commercial does not directly reference Lindsay Lohan is not necessarily fatal to Lohan’s case. In the most famous “misappropriation by allusion” case, Wheel of Fortune hostess Vanna White won a lawsuit against Samsung for a commercial in which a robot turned letters on a Wheel of Fortune-type crossword board. Also: Johnny Carson won against a portable toilet company which sold a “Here’s Johnny” model; Bette Midler won against Ford for a commercial with a sound-alike singer; and rap group the Fat Boys won against Miller Beer for a commercial with sound-alike rappers.
But pause for a moment to think about the logic that Lohan’s lawyer needs to argue to win:
1) “Milkaholic” really means “alcoholic” (so far, so good)
2) Any reference to a boyfriend stealing alcoholic named Lindsay can lead only to the conclusion that the ad is about Lindsay Lohan (stop the music!)
Even if she is right, does Lindsay Lohan really want her lawyer to make that argument at this point in whatever is left of her career?
Now, of course, after my former client Paris Hilton and her friends famously referred to Lindsay Lohan as “Fire Crotch,” if the E*TRADE commercial had mentioned Baby Lindsay’s diaper rash, THAT would be a case worth fighting.