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Lohan Needs a Personal Forum Shopper?

While the Honorable Judge Carton has already ruled on Lindsay Lohan's suit against E*Trade arising out of the hilarious "milkaholic" baby commercial, the real suit, in a testament to the efficiency and rationality of our judicial system, is still pending.

And, while there has been no shortage of mocktastic, "you've got to be f'ing kidding me" coverage of the suit since its filing, leave it to the kids at Columbia Law School to come up with a serious, if mercifully short, analysis of the case. Via the Business Law Prof Blog comes this article from the online version of the Columbia Business Law Review, in which staff member Ari Taub predicts that the case will not survive summary judgment. Give Ari a cookie.

The "surprising" reason it might not survive, according to Taub, is because it was filed in New York, where Section 51 of the Civil Rights Law is more restrictive than the California equivalent, Cal. Civil Code Section 3344. Taub cites as evidence backing up his thesis two "publicity rights" cases, one decided under California law and one under New York law.

The California law case, White v. Samsung, is a 9th Circuit decision from 1992 involving an ad depicting a blond-wigged robot turning letters on a game show set. QUICK - without looking back at the name of the case, what celebrity did you think of???

I was unfamiliar with the opinion, so I read it. (Taub, for some reason, links only to the denial of rehearing en banc.) A couple of things jumped out at me. First, the statutory claim under Section 3344 was disposed of on summary judgment, and that dismissal was affirmed. The claim that the 9th Circuit said could go to the jury was one for violation of the common law right to publicity.

Second, even under the standard embraced by the court in that case for the common law claim (with which Judge Kozinski poetically takes issue in his dissent from the denial of rehearing), I don't think Lohan's suit would make it to a jury. The court there held that the elements of the commercial at issue, taken as a whole, "leave little doubt about the celebrity the ad is meant to depict."

In the E*Trade case, popular opinion seems to be that there is plenty of doubt. I sure didn't think of Lohan when I saw the commercial. Not to mention the question about damages, as pointed out by the E*Trade baby himself on Leno.

All my long-winded way of saying Lohan v. E*Trade is crap in any court in the country. I have to believe that. Or move to Canada.

Posted by Eric Lipman on April 6, 2010 at 11:45 AM | Permalink | Comments (1)


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