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Cumbow on Lindsay Lohan's and Jeffrey Sarver's Right of Publicity Claims

Did you catch my partner Bob Cumbow’s piece today on IPWatchdog?

He offers a fine treatment of the pressing right of publicity cases of the day: Lindsay Lohan’s claim against E-Trade for using the name “Lindsay” in a TV ad featuring a baby “milkaholic,” and Army Sgt. Jeffrey Sarver’s claim against the makers of “The Hurt Locker” ostensibly for making an unauthorized depiction of his life.

Neither probably has merit, Mr. Cumbow says.

“The consensus seems to be that the case will be won or lost at the threshold, where Ms. Lohan has to demonstrate that the ad’s use of the name ‘Lindsay’ is likely to invoke her identity. Her claim that Lindsay is a commonly-recognized single-name celebrity-identifier along the lines of Cher, Madonna, and Oprah appears unsupported by evidence that she has billed herself by first name only; nor is Lindsay as unusual or distinctive a name as those others.”

Sgt. Sarver’s claim is even more of a stretch.

“In the Sarver case,” Mr. Cumbow says, “even construing the facts to the greatest possible benefit of the plaintiff, there still seems to be no theory of law under which the plaintiff is entitled to recovery. If publicly known facts about a real person are used in creating a fictional one, the real person has no proprietary interest in those facts, let alone in the fiction that results. Contrary to popular belief, the law does not preclude people from making a film, or writing a book, about (or based on) a real person without obtaining permission.”

I just don’t see either Ms. Lohan or Sgt. Sarver finding the legal hooks they need. The baby in the ad isn’t Ms. Lohan. Nor does it use Ms. Lohan’s “name, characterization, and personality,” as she claims — she hasn’t reached one-name status quite yet. “The Hurt Locker” doesn’t use Sgt. Sarver’s likeness; that isn’t him on the screen. Even if the film is based on his life, where’s the authority that prohibits a filmmaker from doing so?

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