Lindsay Lohan's Lawyer's Loopy Legal Argument Laced With Lifted Language?
from the why-don't-you-come-to-your-senses dept
Lohan's lawyers seem to be particularly enamored with using publicity rights claims in new and increasingly bizarre ways. She's sued E*Trade for one of its commercials that refers to a baby named Lindsay and says she's a "milkaholic." Despite no other connection to Lohan, her lawyer insisted this was a violation of her publicity rights. Then there was the time that she threatened the jewelry store from which she took a necklace, leading to her arrest. What was the threat about? Believe it or not, the claim was that the video store surveillance footage was a violation of her publicity rights. Yeah.
Either way, Pitbull's lawyers filed their motion to dismiss (pdf) not too long ago, arguing that Lohan failed to state a legitimate claim:
... the First Amendment bars her claims because the Song is protected artistic expression. Moreover, the incidental use of Ms. Lohan's name was not for advertising and trade purposes and therefore is not proscribed by Section 51 as a matter of plain and unmistakable law. Ms. Lohan's remaining causes of action are equally baseless, since she has not -- and cannot -- allege facts warranting injunctive relief, monetary damages for severe emotional trauma or a finding of unjust enrichment.Honestly, this should be a pretty easy case to dismiss, and I'd be surprised if the judge let it go much further. However, Lohan's lawyer, Stephanie Ovadia responded to that with an opposition filing that rambles on bizarrely about a variety of topics from the First Amendment to publicity rights to trademark law to consciousness (seriously, see below), with little effort to actually explain what that has to do with the case. For example, there are random discussions of "non-verbal expression," tattoos, inciting lawless behavior, trademark infringement, celebrity look-alikes and whether or not any of that is covered by the First Amendment. Of course, absolutely none of that has anything whatsoever to do with the case at hand or the issues it raises. Nor does Ovadia even attempt to try to connect these issues to the case.
There are also just some outright bizarre parts in the filing:
The threshold of consciousness is the dividing line between something that can be processed by the conscious mind and something that enters the subconscious mind without any such processing. A hidden message is not intense enough to produce a sensation but has sufficient intensity to influence the behavior and mental processes of one's mind. The decisions the conscious mind makes are based upon the knowledge and reasoning skills one has developed through experience and education....It goes on in the same manner for a few more sentences, never once even coming anywhere near a legal point, nor referencing any part of the case.
Pitbull's lawyers quickly hit back with a filing (pdf) and exhibit (pdf) of their own, noting that Lohan's filing doesn't actually address the pretty clear legal issues raised in their initial motion... and also pointing out that perhaps the reason the filing is so nonsensical is because nearly all of it is plagiarized from random web sources, which they highlight in a handy chart. That bizarre quoted text above apparently comes from the Thinkquest library, which appears to be a project of the Oracle Education Foundation, and whose content is "created by students around the world who have participated in a ThinkQuest Competition."
Other sources include a bunch of copied paragraphs from the Thomas Jefferson Center for the Protection of Free Expression (who, I would guess, would likely come down on Pitbull's side in this case), the LA Times, the Association for Corporate Counsel's website, some presentation about publicity rights found on Docstoc, some law firm websites and a variety of other sources. I'm not a lawyer, but it's not hard to read the filing and wonder what the hell Ovadia was thinking. As THResq wonders, beyond helping to make sure that this case is unlikely to live much longer, the cutting-and-pasting throughout the legal filing might actually expose Lohan and Ovadia to copyright infringement charges themselves, especially from the law firms whose content was copied.
Update: Eriq Gardner, who wrote the THResq story has an update:
Reached for comment, Ovadia's office pointed the finger at Anand Ahuja, of counsel at the firm, who wrote the brief.None of that makes Ovadia or her law firm look very good. First, I love the finger pointing between the two lawyers in the press. It's like reality TV inside a law firm. Second, Ovadia's name is on the filing. It doesn't matter if Ahuja wote it, she should have read it and realized that it was almost entirely nonsensical. Third, I don't know how they write "drafts" but cutting and pasting huge chunks of totally irrelevant information -- including a treatise on consciousness, just doesn't seem like a particularly reasonable practice.
Ahuja was contacted too and says that he turned in "4 or 5 drafts to Stephanie, who looks like somehow by mistake submitted the first one."
He adds that typically his first draft includes footnotes and references and that it gets amended along the way, but that the submission was turned in past the judge's deadline, stripped of his footnotes, and that it was Ovadia's job to review it before signing and filing the document.