Artists, authors and advertisers often ask our law office if they can use references to celebrities and other public personalities in their works and performances.
Isn’t it fair use if I’m not charging for my own work that uses the celebrity’s name? Isn’t it parody if the name or image is imbedded in my original funny skit? Isn’t it free speech if the object of critique is of public interest?
If an impersonation of Sarah Palin is ok, can’t I show the dark unknown about the Queen of England? Or write a song about George Zimmerman’s parents?
Personal publicity rights, which are largely the creations of state law (note that California has one of the more protective publicity statutes), combined with privacy laws established in constitutional jurisprudence and statutory recognitions, come up against the ever-shifting domain of First Amendment rulings and exclusions. The legal consequences can be surprising.
These are areas where the artist, producer or publisher may never find a clear answer. Nevertheless, an informed, good faith evaluation of the interests at stake, in light of the legal environment, goes far towards avoiding unpleasant legal threats against one’s work, or giving some piece of mind to the creative entrepreneur who wants to push the envelope without necessarily being stopped even before the work can be appreciated for what may be truly creative.
Last month recording artist Pitbull filed a motion to dismiss Actress Lindsay Lohan’s suit against him for infringing her publicity rights. Pitbull used Lohan’s name in his hit song “Give Me Everything Tonight.” The line in question: “So, I’m tip-toein’ to keep blowin’, I got it locked up like Lindsay Lohan.”
Pitbull’s attorney responded by arguing First Amendment protection. He admonished the court to consider the consequences of letting Lohan’s claims go to trial. As he described it, allowing Lohan’s suit to proceed would, essentially, put publicity rights above free speech and place a gag order on any work of art using celebrities’ names in its expression.
Pitbull’s attorney lists other reasons to dismiss Lohan’s lawsuit such as: use of Lohan’s name was not for advertising or trade purposes; the use of Lohan’s name was de minimis; Lohan’s emotional distress claim is barred by the First Amendment; and use of Lohan’s name falls under the newsworthy exception to publicity rights. Interestingly, Pitbull’s attorney argues that, because of Lohan’s infamous run-ins with the law – arrests, drug possession, being in and out of court, rehab, and community service – the mention of her is inevitably of public interest and, therefore, not subject to publicity rights. Will a newsworthiness exception be recognized in the song context and when something isn’t really news? We’ll have to wait and see.
With suits like this, the legal issues are “squishy.” The legal analysis in the areas of of privacy, publicity, First Amendment, and defamation requires a balancing of interests. The articulation of those interests truly affects the weight of them in the balance. Also, damages, as hurtful as another’s use or abuse of one’s image may feel, are difficult to show with any certainty. There are a lot of subjective factors in these lawsuits, and it’s not easy to determine what will appeal to a finder of fact. All of this adds up to a real challenge in the assessment of whether or not to bring an action or when and for what amount a reasonable settlement might be achieved.
I recall assisting, some years ago, in the resolution of a publicity rights action by a public personality. In 1999, the civil rights hero Rosa Parks sued LaFace Records and the performing group, OutKast, over OutKast’s use of her name in a song title.
She considered the use of her name particularly offensive, especially in the context of a rap song. She claimed that the use of her name without permission was false advertising and infringed her right to publicity.
How the case might have fared in court is anyone’s guess. The group made the argument for its First Amendment rights. A U.S. District Court dismissed the case largely on First Amendment grounds. But Rosa Parks hired Johnnie Cochran, who appealed and argued that the use of her name could not have First Amendment protection because, while the song had her name in its title, it was not repeated in the song’s lyrics or message.
This was a battle that ultimately benefited from a settlement which included the group undertaking an educational effort to increase knowledge and interest in Rosa Parks in a young generation.
As of now, in the Lohan matter, the Eastern District Court of New York has yet to rule on Pitbull’s motion to dismiss, but the opposition brief filed by Lohan’s attorney has been attacked for plagiarism with Pitbull claiming it consists mostly of excerpts of articles found on various websites without any citations. At this stage, it does not appear that Lohan’s attorneys have done much to protect her “good repute.”
