“So, I’m tiptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan.” – Pitbull, ‘Give Me Everything’

That seemingly harmless one-line of lyric landed Pitbull (aka Armando Perez) and his record company in New York federal court back in November of 2011.  Lindsay Lohan, “a professional actor of good repute and standing in Screen Actors Guild,” complained that his song lyrics violated her publicity rights and caused emotional distress.  New York’s Civil Rights law makes it illegal to use a person’s name, picture, or voice for advertisement or commercial purposes without that person’s permission.  Her lawyers alleged that Pitbull broke this law when he used Ms. Lohan’s celebrity status and name without her permission to sell records and advertise.  They also argued that the lyric’s unflattering reference to Ms. Lohan caused her emotional pain and suffering.

In a lightning quick decision some 15 months later, the federal court anticlimactically dismissed Ms. Lohan’s suit.  The court’s explanation for its decision illustrates nicely just one way the First Amendment works to stop litigation over an artist’s work:

1.  The First Amendment protects speech in the form of artistic expression and music is art.  In a duel between this Constitutional right and state law, the First Amendment wins.  As a result, the First Amendment shields Pitbull and his music from Ms. Lohan’s lawsuit as protected speech.

2.  The First Amendment provides a complete defense only for genuine expressions of art.  A song that is merely a cleverly disguised ad that uses a person’s name in order to sell a product, service, or even the song itself, does not deserve the First Amendment’s full protection.  Pitbull’s song, however, did not use Ms. Lohan’s name to sell a product or service.  Nor did it use her name in the song title or refrain to promote and sell the song itself.  Just because an artist sells their music (or other forms of art), does not mean they’re stripped of First Amendment protection.

3.  The song only used Ms. Lohan’s name in 1 line of a 104 line song.  This minor or incidental use is not enough to give a lawsuit legs.

As for emotional distress, the Court concluded that even if everything Lohan complained of was true she could not have experienced any meaningful pain or suffering.

As an interesting final note the judge sanctioned Lohan’s lawyer to the tune of $750 for plagiarizing the work of newspapers, law firms, and educational websites in the court documents she filed.  The fine was small, but could deal serious damage to the lawyer’s reputation.  A lawsuit that started with an allegation of wrongful use of her client’s name ended with a punishment for the wrongful use of someone else’s work.

While laws vary from state to state and can provide different ways to sue, the protection of the First Amendment does not.  Lohan v. Perez (aka Pitbull)  shows just that.

This story raises an interesting question that goes beyond First Amendment protections.  Are there situations in which an artist’s license for creativity should or may give way to another person’s rights?

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.