THIS YOU GUYS IS A VERY EXCITING CASE, from the standpoint of the legal arguments made by Pitbull’s defense attorneys to win this case on a First Amendment theory. “The fact that the Song was presumably created and distributed for the purpose of making a profit does not mean that plaintiff’s name was used for ‘advertising’ or ‘purposes of trade’ within the meaning of the New York Civil Rights Law.”
Sweet! The court bought it.
I wrote about the case in August 2011 and I immediately identified that at issue was the question of which one trumped: First Amendment or Right of Publicity. The issues were legally sexy but the results would have been far reaching and detrimental to the music community if you couldn’t name drop someone in a song. By the way, why is AML not name dropped in a song yet? Artists? Hello?
Okay, on a more serious note:
Hollywood Reporter’s short synopsis:
“The actress sued after getting mentioned in a rap song, but a judge says that the claim doesn’t survive a First Amendment review. Plus, Lohan’s lawyer gets sanctioned for plagiarism.” m- You can read the full story and see the court’s actual ruling on Hollywood Reporter here.
Now read my article from August 2011 on this case. It is unfortunate the attorney plagiarized content. Lohan may come after the firm, even if it means a refund of some of her already paid fees. If you can’t be bothered to do the work then what are you charging the client for?
I still think, however, it was brilliant lawyering on the part of Lindsay’s lawyer to have filed this action and try to push the envelope on this interesting legal issue. Pitbull’s lawyer was just as brilliant and they came up with an argument that saved the day for their client.
Lindsay Lohan Sues Pitbull for Name Use in ‘Give Me Everything’ – Right of Publicity v. First Amendment, Who Wins?
Brilliant lawyers are a must if you will sue anyone or for any legal matter you have. Brilliant lawyers save you money and get the job done efficiently. Which brings us to our current case. There are so many ways to skin a cat, which one is most efficient and allows you to “nail the sucker” as in Lohan’s case? Defamation? Nope, not quite. Going the defamation route would be a huge hurdle to overcome and the facts do not lend themselves to a claim of defamation.
What are the options? If you are Lindsay, you go to your clever lawyer and you say, “that Pitbull guy, me no like him one bit! I’m tryna clean my life up and he gets away with using me in a song?!!!!! SUE HIM.” A clever lawyer responds, “well in New York ,we have a “Right of Publicity” statute and it is a statute that is quite broad and allows us to file suit against Pitbull for just using your name in his song. We need not analyze whether it was a good or bad use. He used your name both in a way that assaulted your dignity and also for commercial gain without consent. End of story. This statute will also allow you Ms. Lohan to ask for an injunction and money for all of your emotional suffering.”
If you are Lohan, you say sweet LEGAL MOVE! I love it! Let’s do it!
What is right of publicity?
1. See Naomi Campbell Case
2. See Kim Kardashian’s case
Also see my video below discussing this.
What Does Lindsay Want?
An Injunction - It ain’t happening. The parties will settle. Plus, Lindsay takes a risk going to trial because this is all new area of the law and can go either way with more leaning, I predict, towards Pitbull.
The parties will talk and try to settle the dispute. Pitbull is already on his PR game.
Bigger legal philosophy question
Clearly there are two things going on in this case, the right of publicity versus the first amendment. This tug of war has really become and will become increasingly prevalent given celebrities are now using this law to get around the defamation cause of action hurdle.
There is only one case, Zacchini v. Scripps-Howard Broadcasting Co., from the Supreme Court that addressed the tug of war in Right of Publicity cases and its impact on the First Amendment and free speech. But we still need for the Court to address this tension and really delineate the lines.
If a comedian jokes about Lindsay and makes money, should the comedian be sued? That will lead to absurd results wouldn’t it?
Should rappers/ artists be sued where they name drop in their songs? The reasoning and analysis show it would also create absurd results.
On its face, the legal tool “Right of Publicity” Lohan is using looks effective and should make Pitbull settle quickly. But, as a matter of public policy, this law really needs to be revisited. Pitbull’s case is the perfect test case for this.
What are your thoughts? You can discuss on the firm’s facebook FAN page here.
“Lindsay Lohan has just sued the rapper Pitbull for a line in his mega-hit, “Give Me Everything,” for a disparaging lyric about her.
“The song — written by Ne-Yo and Afrojack, also defendants — has a line:
Hustlers move aside, so I’m tiptoein’, to keep flowin’
I got it locked up like Lindsay Lohan.
Lindsay is pissed, claiming in her lawsuit … “the lyrics, by virtue of its wide appeal, condemnation, excoriation, disparaging or defamatory statements by the defendants about the plaintiff are destined to do irreparable harm to the plaintiff.”
Lindsay, who claims in the lawsuit she is “a professional actor of good repute and standing in the Screen Actors Guild, is suing under the New York civil rights laws, which protects people from having their name exploited for commercial purposes.”
TMZ has the full story.