No blog can really take itself seriously unless it’s written about Lindsay Lohan.  Plus our Marketing Department claims she’ll do wonders for our search rankings.

Ms. Lohan, in case some of you have just awoken from a coma, has been in the news a time or two in recent months.  As a result, a hip-hop artist who goes by the name Pit Bull released a song entitled “Give Me Everything” which included the lyrics “So I’m tiptoeing to keep flowin’/ I got it locked up like Lindsay Lohan.”  Ms. Lohan’s attorneys found time to sue (though as we’ll see shortly, suing someone named “Pit Bull” is apparently not wise.)

Ms. Lohan alleged that the use of her name for commercial benefit violated New York’s Civil Rights Law (and apparently also caused unjust enrichment and emotional distress.)

Now no ice cream company would likely ever think of creating a black and white ice cream and calling the flavor Lindsay Lohan.  Indeed New York’s Civil Rights Law forbids the use of a person’s name for advertising purposes without written consent.  The Court, however, citing a long line of New York precedents, found that New York’s law does not apply to works of art, including music.

The Court further held that Ms. Lohan’s name was not used in the song for “advertising or trade purposes.”  Indeed, again citing New York precedent, the Court found that even if the use of Ms. Lohan’s name was designed to sell CDs (or downloads) that does not satisfy the “use for advertising” standard.

Now we’re big fans of the First Amendment (and we agree with the judge that in any event the use of Ms. Lohan’s name was “fleeting”) but does such a clear distinction between art and advertising make sense in today’s world?  If an advertiser can’t use a celebrity’s likeness without permission on a product label should a songwriter be able to use that celebrity’s name in a song about a relationship gone wrong?  At the same time, the use of a name or likeness for art that is really political speech or satire seems like exactly the kind of use we should want to protect. 

Which leads us then to messy line drawing, but courts do evaluate the types of speech and do engage in First Amendment line drawing.  Should they do that here?  We’ll close simply by observing that last year Katy Perry is reported to have earned more than several Fortune 100 companies.  The line between art and commerce can indeed be blurry.