Will Lindsay Lohan Protect Celebrities Everywhere?Thu May 08, 2008 @ 12:32PM PST
Posted by Eriq Gardner
The Above the Law blog runs an interesting guest column today by Marc Edelman about a potential lawsuit from Lindsay Lohan that could help clarify whether state laws guarding publicity rights protect celebrities from having their name and image abused in political-oriented advertisements.
The American Beverage Institute recently ran an advertisement in USA Today opposing the mandatory use of breathalyzers. Here's an image of the ad:
ABI Managing Director Sarah Longwell told MTV.com that she believes Lohan’s mug shot is fair game because it is already in the public domain. Lohan's lawyer was furious.
Meanwhile, the ABA said it planned to use the mug shots of other celebrities arrested for drunken driving in further campaigns.
Edelman doesn't think that Lohan has a claim under the Lanham Act, which among other features, prohibits advertising that creates confusion of an endorsement Instead, Edelman believes a case would be fought on state laws that prevent unauthorized use of one’s image for commercial gain. Well, duh.
California and many other states have aggressive right of publicity statutes to guard against unauthorized uses of celebrity likenesses. But because ABA is a trade organization, it may argue its ad is political speech, not commercial. The case involves enough grey area that Edelman writes, "Attorneys for both athletes and entertainers will be following these developments closely."