Lindsay Lohan Claims Surveillance Tape Of Her Stealing Necklace Violates Her Publicity Rights

from the might-want-to-rethink-that-one... dept

Lindsay Lohan is no stranger to questionable publicity rights claims. After all, she sued E*Trade, because the company had a commercial with a baby named Lindsay, who was described as a “milkaholic,” and she insisted that this was meant to be a reference to her (something no one else actually thought). The latest is that Lindsay, who’s facing time in jail for stealing a necklace, is apparently so upset that the jewelry store surveillance video of her stealing the necklace has been released, and shown on Entertainment Tonight, that she’s threatening to sue the jewelry store where it was taken, suggesting it was an abuse of her publicity rights.

Of course, core to her argument is the idea that the store sold the tape, but the store denies this. Even if it were true that the store sold the tape, it’s difficult to see how there’s a legitimate publicity rights claim here. But, of course, with publicity rights still being a new and somewhat untested area of law, you could actually see a judge buying such a ridiculous claim.

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Comments on “Lindsay Lohan Claims Surveillance Tape Of Her Stealing Necklace Violates Her Publicity Rights”

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72 Comments
Anonymous Coward says:

Re: Re: Re: Seriously?!

The publicity rights law would be first here. A video tape of other visitors to the store wouldn’t be valuable. The tape is valuable only because of who is on it.

Second, there might be a question of privacy. Was Ms Lohan made away that the tapes could be sold? Does it violate her privacy?

cc (profile) says:

Re: Re: Re:2 Seriously?!

“The publicity rights law would be first here. A video tape of other visitors to the store wouldn’t be valuable. The tape is valuable only because of who is on it.”

How about other visitors stealing, though? Refer to Failblog and such for a whole bunch of those.

“Second, there might be a question of privacy. Was Ms Lohan made away that the tapes could be sold? Does it violate her privacy?”

I know in the UK there are laws that make it illegal to hand over CCTV footage except in exceptional circumstances, but AFAIK there’s no similar legislation in the US.

So, was it unethical to hand over the footage? I would say yes. Was it illegal? I’d say probably not. I think it’s the same disparity between morality and legality that comes up in file-sharing discussions.

Michael (profile) says:

Re: Re: Re:2 Seriously?!

“Second, there might be a question of privacy. Was Ms Lohan made away that the tapes could be sold? Does it violate her privacy?”

She was in public. That takes away the privacy part of this. In a public place, you can video tape anything you want. You may have a wire-tapping issue if there was sound recorded, but she has no expectation of privacy when she is in public.

Anonymous Coward says:

Re: Re: Re: Seriously?!

The publicity rights law would be first here. A video tape of other visitors to the store wouldn’t be valuable. The tape is valuable only because of who is on it.

Second, there might be a question of privacy. Was Ms Lohan made away that the tapes could be sold? Does it violate her privacy?

Gwiz (profile) says:

Re: Re: Re:2 Seriously?!

The publicity rights law would be first here. A video tape of other visitors to the store wouldn’t be valuable. The tape is valuable only because of who is on it.

I would think that any tape showing someone shoplifting becomes more valuable, especially to the store.

Second, there might be a question of privacy. Was Ms Lohan made away that the tapes could be sold? Does it violate her privacy?

There is no expectation of privacy inside of any store for anyone, including celebrities.

Gwiz (profile) says:

Re: Re: Re:4 Seriously?!

Again, given all the same circumstances, but the person is “joe blow” instead of Lohan, is the tape as valuable? No. They are selling it based on her being in it, her name, etc.

It may be more valuable, but that is irrelevant. Public place, no expectation of privacy what so ever and she was not the creator of the work. The paparazzi’s photos of Lohan are more valuable than their photos of Joe Nobody. So what?

Mike Masnick (profile) says:

Re: Re: Re:5 Seriously?!

There’s no “famous person” exception in the law.

Actually, there *are* some laws that do have famous person exceptions, including some publicity rights laws. Some of them have required that the person’s likeness have commercial value to qualify. Also, some libel laws have different rules for famous people.

So, you should be careful there.

Mike Masnick (profile) says:

Re: Re: Re:7 Seriously?!

OK Mike, so which is it? In Re: Re: Re: Re: Seriously?! you ask “”Which publicity rights law?” then in Re:^7 you say that some pub rights laws DO have famous persons exceptions.

When I said “which publicity rights law” I did not mean that there were none. I meant that there are many. The commenter said “the” one, and I can’t evaluate that claim because I don’t know which one he means.

btr1701 (profile) says:

Re: Not that I am defending her...but...

> Wouldn’t she have some rights? The store
> *sold* the tape and made a huge profit
> on it. Wouldn’t she have a right to some
> of that pie?

Nope. Not any more than she has a right to part of the money made from all the paparazzi photos taken of her as she walks in and of court and rehab and wherever.

Gwiz (profile) says:

Re: Wonderful

Someone needs to end this nonsense now.

I agree.

This whole “publicity rights” thing seems more and more like whiny people saying “Wahhhh, someone’s doing a better job making money from my puplic image than I am, so they OWE me!!!!”.

I mean really, if you want your public image to be pristine…DO NOT DO STUPID THINGS IN PUBLIC. Not a hard concept.

icepick314 says:

WTF?

that milkaholic needs to get some sense slapped into her…

p.s. she’s now forever “milkaholic” since SHE brought it up…

it never occurred to me to link Lindsay and “milkaholic” when that commercial aired…while the commercials where funny I never thought of Lindsay Lohan when that “milkaholic” commercial came on…

now everytime I see an E-trade commercial, E-trade pulled that “milkaholic” commercial off the air, all I can think about is that stupid milkaholic and her silly antics…

Huph (user link) says:

Re: WTF?

I don’t know. I’m fairly pop culture savvy, since it’s part of my job, and I immediately got what the advertisers were going for when they made that spot. I think it’s *clear* that they were implying Lindsay Lohan, though I don’t think they should suffer legal recourse since Lindsay is a common name and they never explicitly, or overtly, made reference to Lindsay Lohan. Nor is calling someone a “milkaholic” any kind of defamation.

But then again, I’m well aware that there are absolutely no accidents in a commercial, or on a magazine cover; basically anything that involves a publicist is never “an accident.” These people agonize for days over fake names for fake characters in their fake commercials (as Charles Barkley has said of advertising spots: “They got a woman who makes sure the cheese on your taco looks right!”) There’s not a chance in hell that someone at the ad firm wasn’t aware of the implication, even if the name was originally chosen because it was one of their children’s names. Someone on their, or E*Trade’s legal firm almost definitely advised against using the name for this reason, and I’m sure the marketing people chose not to worry about it. I’m not saying it’s right, but this is what happens.

That being said, I still think Lindsay should have let it go. It’s the price you pay for being a celebrity. It was basically equivalent to an SNL send-up. Brush that dirt off your shoulder and go buy a fancy necklace or somethin… wait a minute…

nasch (profile) says:

Re: Re: WTF?

That being said, I still think Lindsay should have let it go. It’s the price you pay for being a celebrity. It was basically equivalent to an SNL send-up. Brush that dirt off your shoulder and go buy a fancy necklace or somethin… wait a minute…

Or better yet, cash in. See if she can get in on a Got Milk? ad campaign as a milkaholic.

Ryan Diederich says:

Well....

Lindsay is gross, for starters. Why do people feel the need to break the law when they are filthy rich? Doesnt make any sense to me.

Anyways, she wont (shouldnt, according to the law anyways) win this case. Here are the reasons:

If there are any laws about public recordings, they are moot here. This WAS NOT IN PUBLIC!!! This was a private business, free to videotape/record whatever it wants.

As such, the video is also private property, and unless it was evidence (not sure if there is a law about selling evidence). They are free to do what they please with it. Even MORE SO than paparazzi in public.

Anonymous Coward says:

Why WOULD the store release this tape for public consumption? What would be their motivation for doing so?
Furthermore, if the store is going to make a case against Lindsay, isn’t this video considered evidence? Why would they release evidence to the public before a trial? Wouldn’t this interfere with her right to a fair trial?

Anonymous Coward says:

Which publicity rights law? You say “the” as if there’s one.

How about California’s right of publicity law… you know, the state where the alleged theft occurred, where Lindsay lives, and where the recording was made?

Another post where no law is provided, and the facts presented in such a way so as to incite anger, fear and disgust in IP laws (publicity rights are a subset of unfair competition law). How about some analysis? Or is it easier to get everyone into a frenzy in the comments by not doing so? Hyperbole drives comments and views, right Mike?

Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs. California Civil Code Section 3344

In California, there is no requirement that the person’s name or likeness be commercially valuable (although, Linday’s obviously is).

Make up your own mind on whether she’ll prevail… but at least read and try to understand the applicable laws.

Karl (profile) says:

Re: Re:

It seems like the law you quoted explicitly says why it wouldn’t apply in this case:

on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services

They’re not using the tape in advertisements for their jewelry store.

Furthermore, you missed an important part of the statute:

For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).

For reference, that statute is California Code Section 3344.

Karl (profile) says:

Re: Re: Re:

Incidentally, there’s an overview of relevant caselaw, here:

Practitioner’s Guide to California Right of Publicity Law

I found Joplin Enterprises v. Allen quite interesting:

In Joplin, the District Court applied California’s Section 990 to hold that a two-act biographical play about deceased vocalist Janis Joplin was not actionable.

This makes the whole “Jackie Jormp-Jomp” thing on 30 Rock even funnier.

Anonymous Coward says:

Re: Re: Re:

Karl,

The thrust of my post was the vapid and conclusory nature of Mike’s post. Reasonable minds can disagree, but only when they have the relevant facts. Glad to talk about the issues with you, though.

I disagree with you. The surveillance video is undoubtedly a “good” or “product” on or in which Lindsay’s likeness is being used without her permission. This is precisely what publicity laws seeks to prevent. “The term ‘right of publicity’ has since come to signify the right of an individual, especially a public figure or a celebrity, to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for their commercial benefit.” Estate of Elvis Presley, 513 F. Supp. 1339.

And Lindsay isn’t suing news outlets, she’s suing the jewelry store that is exploiting Lindsay’s notoriety for its own financial gain. Thus, the exception you cited doesn’t apply.

Karl (profile) says:

Re: Re: Re: Re:

The thrust of my post was the vapid and conclusory nature of Mike’s post.

You say “vapid,” I say “common sense.”

The surveillance video is undoubtedly a “good” or “product” on or in which Lindsay’s likeness is being used without her permission.

As far as I know, they’re not using the footage to promote the store at all, so I don’t think there’s a “product” there.

From what I can tell, she’s angry that the footage is being released at all, even to news outlets. Whether money changes hands or not, that’s certainly a “public affairs” matter, so the statute probably wouldn’t apply. It might be different if it was “Lindsay Lohan’s Girls Gone Wild” or something like that, but that’s not what’s going on here.

Assuming the store even sold the footage at all, which they deny.

Anonymous Coward says:

Re: Re: Re:2 Re:

As far as I know, they’re not using the footage to promote the store at all

Who said anything about promoting the store? They are (allegedly) promoting and selling a video, the good, which contains Lindsay’s name or likeness. Period.

And the jewelry store is not a news outlet, and thus the exception does not apply. Not sure why you think the buyer matters. She’s not suing the buyer.

nasch (profile) says:

Re: Re: Re:3 Re:

And the jewelry store is not a news outlet, and thus the exception does not apply.

The exception reads “For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).” That doesn’t say anything about who is using the likeness, only how it’s used. So it looks to me like she’ll have to prove the store sold the tape or she’ll have no case.

Mike Masnick (profile) says:

Re: Re:

How about California’s right of publicity law… you know, the state where the alleged theft occurred, where Lindsay lives, and where the recording was made?

Yup. I figured you’d say that. That’s what I wanted to make sure. You claimed “the” publicity rights law, but there are multiple ones. And California’s does not apply here. I was waiting for you to make this claim to point that out, but others have. It’s a newsworthy video. Thus, sorry, no publicity rights.

Thanks for playing, we’ll catch you next time around.

Anonymous Coward says:

Re: Re: Re:

Yup. I figured you’d say that.

Not the same AC, Mike. Thanks for playing.

It’s a newsworthy video. Thus, sorry, no publicity rights.

The exception protects media outlets, not jewelry stores. Incidentally, whether there is a public interest in a use affects the requisite burden of proof required to prove a violation. It’s not an absolute bar to a claim as you suggest. But expecting such a nuanced legal evaluation from TechDirt is unrealistic.

nasch (profile) says:

Re: Re: Re: Re:

The exception protects media outlets, not jewelry stores.

The exception reads “For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).” That doesn’t say anything about who is using the likeness, only how it’s used. This use is clearly in connection with a news broadcast, so the exception would apply.

Mike Masnick (profile) says:

Re: Re: Re: Re:

The exception protects media outlets, not jewelry stores. Incidentally, whether there is a public interest in a use affects the requisite burden of proof required to prove a violation. It’s not an absolute bar to a claim as you suggest. But expecting such a nuanced legal evaluation from TechDirt is unrealistic

It’s great when a totally ignorant AC tries to mockingly explain the law to me, and then gets it wrong.

Sorry, the law makes no statement about media outlets. The law addresses the content, not the venue or the party. You lose.

Anonymous Coward says:

Re: Re: Re:2 Re:

Sorry, the law makes no statement about media outlets

No, but it does make a statement about use that is made “in connection with” a news broadcast or account. The jewelry store is selling the tape for its own financial gain, not using it in connection with a news broadcast or account. The fact that a media outlet purchases it and ultimately uses it in such a manner serves only to protect their specific use, not the jewelry store’s. You can see why the purchaser’s use is irrelevant to the seller’s liability, right?

By the way Mike, it’s nice that you’re now debating the merits of a publicity claim under California’s right of publicity statute (the actual law at issue). Based on my initial post, commentators have posted actual law, exceptions to the law, and some actual analysis. It’s unfortunate that (a) you never posted any of this analysis in your article, and (b) that, each of your posts is full of snarky, immature comments (nothing new).

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