Did the lyric, “So, I’m tiptoein’ to keep flowin’/I got it locked up like Lindsay Lohan” in musician Pitbull’s song “Give Me Everything” violate the rights of actress Lindsay Lohan? Judge Denis Hurley in the United States District Court for the Eastern District of New York said “no” in a Memorandum and Order in February.
Ms. Lohan sued Armando Christian Perez (better known as Pitbull), and Shaffer Chimere Smith, Jr. (better known as Ne-Yo), Nick Van De Wall (better known as Afrojack), and several others alleging that that the lyric fragment violated the New York State Civil Rights Law (the “Law”), was “unjust enrichment,” and constituted intentional infliction of mental distress.
New York State has a distinctive, even limited, approach to the right of privacy, codified in Section 50 and 51 of the Law. (Many other states have a common-law right of privacy that can be more expansive than New York State’s statute.) Among other things, the Law says that it is a misdemeanor to “use for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person…”.
But court cases in New York have carved out an exemption from liability where the use of the name is as part of a work of art. That’s what Judge Hurley found, saying the song “is a protected work of art,” so “the use of plaintiff’s name therein does not violate” the Law. Further, he found that the accused lyrics were not “advertising” or “trade” use under the Law, pointing out that the plaintiff’s name “does not promote a product or service.”
As to Ms. Lohan’s claim that the lyrics constituted intentional infliction of emotional distress, Judge Hurley found Ms. Lohan’s claim insufficient. Quoting from an earlier unrelated court opinion, Judge Hurley pointed out that that the “issue must transcend the bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community.” Similarly, the unjust enrichment claim was dismissed as inapplicable under the Law.
No mean girls in sight, just one firm-minded federal judge. Ms. Lohan’s case was dismissed. Further, the judge considered the alleged plagiarism in legal pleadings by one of Ms. Lohan’s attorneys. Finally, the court declined to sanction Ms. Lohan for an allegedly frivolous lawsuit.
Still, if the court didn’t give Pitbull and the other defendants everything it asked for in the lawsuit, it came pretty close. Pitbull could sing another lyric from his song, “Give Me Everything”: “And tonight, let’s enjoy life/Pitbull, Nayer, Ne-Yo/That’s right.”
In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.