Maybe you tuned into this year’s Super Bowl because you’re a football fanatic, or maybe you watched for the catchy commercials. This year, some big names were featured in the Super Bowl ads: Howard Stern, David Beckham, and at half time, Jay Leno. And the old stalwarts were back: Coke’s happy polar bears, Go Daddy’s hottie, and E*TRADE’s talking babies.
Chances are, this year’s E*TRADE commercial won’t make quite the splash as the one that debuted during Super Bowl XLIV (that would be 2010). In this particular ad, a baby boy apologizes via Skype to a baby girl who wants to know why he didn’t call last night. He says he was busy on E*TRADE and tries to move on to another subject. She’s not buying it. Suspicious, she presses on. “And that milkaholic Lindsay wasn’t over?” He plays dumb. “Lindsay?” he asks, as if that’s the furthest thing from the truth.
And then, popping into view on his end of the Skype screen a little girl, at his place, and sounding a bit tipsy, asks —: “Milk-a-wha-?” Poor guy is busted.
Cute ad, I thought, when I first saw it. But Lindsay Lohan (famous for her roles in movies like The Parent Trap and Mean Girls, but nowadays better known for her multiple stints in rehab and court appearances) was sure that the “milkaholic” baby was modeled after her.
So sure, she sued in New York state court.
As LegalZoom reported, Ms. Lohan sued E*TRADE for $100 million after the ad aired and demanded that it stop running the spot because it violated her right to privacy. In other words, Ms. Lohan alleged, by using the name Lindsay without seeking Ms. Lohan’s permission E*TRADE appropriated — inappropriately — Ms. Lohan’s name, characterization, and personality. This is because, the argument went, that when the public hears “Lindsay”, it thinks Ms. Lohan.
And of course, it’s not just the use of the name Lindsay but that the baby in the ad was addicted to the bottle. An unsubtle reference to Lindsay Lohan’s troubles with the bottle, Ms. Lohan claimed.
We’ll never know how this case might have fared in court because the company settled with the star in September of 2010 for an undisclosed amount.
LegalZoom recently asked if the law was on Ms. Lohan’s side in that case but didn’t venture to answer. We will.
First, the advertising company’s side of things: A spokesperson for Grey Group, the ad agency that worked on the TV spot, said the name Lindsay was chosen because it’s popular and was also the name of someone on the Grey account team.
I did a little digging.
First, I looked at popular 2009 baby names for girls. Lindsay appeared nowhere on the list …though I’m not sure how scientific this list is. (It says “Peyton” and “Addison” made the top 40 girls names that year. Really?) I also scoured LinkedIn, a social networking site for professionals, for a Grey Group account team employee named Lindsay. There were a few, but they all started working at Grey after the “milkaholic” commercial aired. Now, that’s not to say there wasn’t a Lindsay employed during the making of the ad. But I can find no proof there was. (And my call to Grey Advertising’s spokesperson was not returned).
In New York, no one can use La Lohan’s name, portrait, or picture without her written consent, as outlined in Section 50 of New York’s Civil Rights Law. But legally, the use of someone’s name usually means the use of someone’s full name. And while a celeb like Cher, Madonna, or Oprah might be able to overcome this hurdle, the argument doesn’t seem as strong for Lindsay (hard as her lawyer tried). And neither does the argument that the commercial used her character and personality.
In 2008, the Southern District of New York explored the use of someone’s likeness in the case of the Naked Cowboy versus the Blue M&M. The court found that Mars candy company had not used the Naked Cowboy’s likeness or a representation of him when it dressed a cartoon blue M&M exactly like the Cowboy in a video ad run in Times Square –home of the Naked Cowboy. The court reasoned that no viewers could possibly have thought that the M&M was meant to depict the Cowboy, even though he made his home in the very area that the ad was run.
It doesn’t seem like the court would view a talking baby who likes her milk (maybe a little too much) as anyone in particular. Not even you, Ms. Lohan.
It’s puzzling that Ms. Lohan would even bother suing E*TRADE in the Empire State, with the likelihood of success so slim. California law tends to give celebrities better odds in this kind of case, though it wouldn’t have been a sure thing there, either. In the famous 1992 “Vanna White case”, Ms. White sued electronics maker Samsung because it used a robot dressed in a wig and gown in an ad that strongly resembled her during her “Wheel of Fortune” days. The court reversed the lower court that had dismissed the case, and held that arguably, Samsung had appropriated her identity, and allowed the case to go to a jury.
Ms. Lohan’s track record has been full of (self-imposed) obstacles and speed bumps, but she has been working on improving her image. And according to TMZ, there’s a new lawsuit in the works to aid with the effort. This time, Ms. Lohan is thinking of suing the media outlets that ran stories saying she was seen drinking alcohol at a Screen Actors Guild Awards after-party last month.
We wish Ms. Lohan the best of luck; she’s actually very talented. Our advice: get 1) clean; 2) back to the big screen; and 3) out of the courtroom.
UPDATE, March 19, 2012: Lindsay Lohan refuses to take our advice. Now shes’ suing a rapper for mentioning her name in a song.