Guide Through the Legal Jungle

Has E*Trade Violated Lindsay Lohan’s Publicity and Privacy Rights?

Lindsay Lohan, the star of Freaky Friday, Mean Girls and Bad Luck who has been troubled by substance abuse and an arrest record, alleges in a recently filed lawsuit that an E*Trade commercial violates her publicity and privacy rights.

The Offending Commercial

In the offending commercial, which first aired during the Superbowl, a baby boy explains to his girlfriend via video cam that he forgot to call last night because he was busy e-trading. When the girlfriend asks suspiciously whether the milk-a-holic Lindsay was at his house, another blond baby girl appears in the boy’s camera asking “Milk-a-what?” You can view the E*Trade commercial here.

How Lohan Wins Her Right of Publicity Claim

The Right of Publicity is the right to prevent others from commercializing or profiting from your identity. To win the lawsuit, Lohan must prove that the audience identified the Milk-a-holic baby as Lindsay Lohan. This could be a challenge as Lindsay is a popular name for baby girls and Lohan would need to show that she is widely recognized by use of her first name only.

However, celebrities have progressed with similar “long-shot” right of publicity claims. For example, Spike Lee temporarily stopped Viacom from using the name SpikeTV for a new network Viacom described as “unapologetically male, . . . aggressive and irreverent.” Lee submitted evidence indicating that he had a reputation for irreverence and aggressive¬ness and that a number of people would associate SpikeTV with Spike Lee. The parties eventually reached a settlement that allowed Viacom to use the SpikeTV name.

Gaylord v. US, Part Three, Where Copyright Provisions of Government Contract Fell Short

In Part One and Part Two of this blog series, I discussed the copyright fair use and copyright co-authorship aspects of the Gaylord v. U.S. case involving the Postal Service’s issuance of a Korean War Veterans Memorial stamp. In this final part of this three-part blog posting, I’ll discuss the government contracting aspect.

My only familiarity with this case is from my reading of the court decision. From that admittedly limited vantage point, it seems to me that the government could have avoided this situation if it had exercised more care in the drafting and oversight of the government contract with Cooper-Lecky, the general contractor for the Memorial. Instead, the government stepped on a landmine lurking in the copyright provisions of the contract.

The contract between the government and Cooper-Lecky gave the government broad rights in the Memorial including the right to use all elements of the Memorial on any other government design or construction. Such language should resolve the government’s problem with Gaylord’s copyright infringement lawsuit – except that Gaylord was not a party to the government-Cooper-Lecky contract. Cooper-Lecky granted the government all the rights Cooper-Lecky held in the Memorial. However, one cannot grant rights it doesn’t have and Cooper-Lecky evidently did not have sufficient rights in Gaylord’s work on the Column.

From the government’s perspective, Cooper-Lecky should have been contractually obligated to obtain in writing proper rights from everyone who worked on the Memorial project so that Cooper-Lecky could properly convey those rights and permissions to the government. Somewhere along the way, this process broke down. The court opinion suggests that Cooper-Lecky and Frank Gaylord did not start their working relationship with a written agreement addressing the copyright ownership of the Column. As a result, Gaylord and Cooper-Lecky disputed copyright ownership of the Column for years with those disputes finally culminating in a 1994 agreement in which Cooper-Lecky acknowledged Gaylord’s sole copyright ownership of the Column.

Gaylord v. US, Part Two, Government Is Not Co-Author of Government Commissioned War Memorial

In Part One of this blog series, I provided the background of the Gaylord v. U.S. decision. I also discussed the case’s fair use finding that the U.S. Postal Service’s issuance of a Korean War Veterans Memorial stamp was not a fair use.

In this Part Two, I’ll discuss the copyright co-authorship aspects of the case. As one of its defenses to Frank Gaylord’s lawsuit, the U.S. government claimed to be a co-author of the Column.

The Meaning of Copyright Co-Authorship

If the government qualified as a co author, it would have a right to use the Column without permission from Gaylord and there would be no infringement. You do not need a contract for the creation of a co-authorship relationship so it is possible to take on a co-author without the explicit intention of doing so. A copyrighted work qualifies as a joint work if it is a work prepared by two or more people with the intention that their contributions be merged into one inseparable work. As you might guess, the validity of a co-authorship claim is highly fact specific. The individual claiming to be a co-author must show independent copyrightable contributions and intent.

No Government Copyright Co-Authorship in Memorial

The government claimed its co-authorship through the primary contractor Cooper-Lecky and through the Korean War Veterans Memorial Advisory Board (VAB), and the Commission on Fine Arts, two government entities that worked on the Memorial. The court did not agree that the government was a co-author of the Column and found that Gaylord was the sole author of the soldier sculptures.

Instead, the court concluded that the government had merely provided Gaylord some direction and ideas which did not qualify as independent copyrightable contributions eligible for co-authorship status. For example, the VAB had suggested ethnicities and equipment to make the soldiers appear representative of those in the Korean War and Cooper-Lecky had suggested that Mr. Gaylord depict more youthful soldiers with less wind in their ponchos.

Furthermore, in a 1994 agreement with Gaylord, Cooper-Lecky acknowledged that Gaylord was the sole author of the Column of soldier sculptures.