An effort to enact meaningful Right of Publicity recognition in New York is gaining momentum. It is long overdue. Details to follow when available and appropriate for release.
It should be noted that for the better part of the Twentieth Century, New York’s judiciary interpreted New York Civil Law sections 50 and 51 as inclusive of postmortem publicity rights. This means, for example, that at the time of Marilyn Monroe’s death in 1962 New York did indeed recognize such rights (and those rights were capable of passing, and thus did pass, into her estate). There is, therefore, precedent for New York recognizing these rights. It need not be seen as treading into uncharted territory.
A New York judge has ruled against Lindsay Lohan’s recent claim against Pitbull and Ne-Yo for use of her name in their song “Give Me Everything.” The lyric in question is “…tiptoein’ to keep flowin,’ locked up like Lindsay Lohan.”
While not a flattering reference, it might not be entirely inaccurate considering Lohan’s well-publicized and seemingly frequent legal issues in recent years. Lohan’s claim was based in part on New York’s civil law, sections 50 and 51. Here’s a link to New York’s statutes: http://rightofpublicity.com/statutes/new-york
New York still views claims involving the commercial use of a person’s name or likeness through a right of privacy prism, while most states have adopted the more evolved approach afforded by the Right of Publicity. I understand Lohan’s lawsuit also included a claim for unjust enrichment and intentional infliction of mental distress.
While New York’s law leaves a lot to be desired from a Right of Publicity perspective, some rulings in New York have recognized an exception to liability when the use occurs in a manner that is protected by the First Amendment or is a non-commercial use, such as in a work of art. As I often have said, the context in which a use occurs often can determine whether or not a use is protected or a Right of Publicity violation. Use of a name in a song is not always protected or non-commercial, as Outkast found out when Rosa Parks’ representatives filed suit against them for Outkast’s song “Rosa Parks.” Here’s a link to that decision: http://rightofpublicity.com/pdf/cases/rosaparks.pdf
Claims that fall outside the area that the Right of Publicity is meant to address do not serve the doctrine well; rather, they undermine the important purpose served by the Right of Publicity, and they provides easy fodder for critics of the Right of Publicity (though when that happens, it is also pretty easy to refute–every area of the law is subject to abuse by tenuous or frivolous claims, and the judiciary is pretty good at handling those situations). I reserve comment on Lohan’s other claims in the lawsuit, but with respect to New York’s civil law sections 50 and 51, I think the judge got it right.
Frequent visitors to this site may recall Lohan’s lawsuit against E*Trade for the “milkaholic” reference: http://rightofpublicity.com/lindsay-lohan-and-the-etrade-milkaholic-baby
Here’s a link with more information on Lohan’s claim against Pitbull and Ne-Yo: http://www.lexology.com/library/detail.aspx?g=75691a6d-65ef-4366-bc24-595500c33c08&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+Federal+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2013-03-06&utm_term=
9th Circuit grants and files amici brief in Jimi Hendrix case, RightOfPublicity.com and Luminary Group’s Jonathan Faber contributor
In advance of the upcoming hearing in the Jimi Hendrix appeal, I have just been informed that the Ninth Circuit has granted and filed the amici brief that RightOfPublicity.com’s Jonathan Faber contributed to on behalf of Luminary Group LLC and its clients. Should be an interesting case to monitor.