Lohan v. Perez
924 F. Supp. 2d 447
E.D.N.Y2013Background
- Plaintiff Lindsay Lohan sues multiple artists and labels for using her name in the song Give Me Everything without consent, asserting NY Civil Rights Law §§50-51, unjust enrichment, and IIED.
- The Song, released 2011, includes a one-line reference to Lohan and was distributed widely in New York and elsewhere.
- Plaintiff alleges the use was for advertising/purposes of trade and harmed her reputation and privacy.
- Defendants move to dismiss under Rule 12(b)(6); lyrics are considered integral to the complaint.
- Court preliminarily finds the Song is a protected work of art and the use is incidental, not for advertising/trade.
- Separately, the court addresses sanctions against plaintiff and counsel for plagiarism in the opposition brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NYCRL §§50-51 apply to the Song | Lohan asserts nonconsensual use for advertising/trade purposes. | Song is a protected work of art; First Amendment defense applies. | Statutory claim dismissed; First Amendment protection applies to the Song. |
| Whether use was for advertising or trade | Name used to promote the Song and defendants’ profits. | Use is incidental and not in title/refrain; not advertising/purpose of trade. | Use deemed incidental; §50/§51 not satisfied. |
| Whether unjust enrichment claim survives | Unjust enrichment independently supports relief. | Rights arise under §§50-51; no separate common-law claim allowed. | Unjust enrichment claim dismissed; subsumed under statutory claims. |
| Whether IIED claim survives | Song's nonconsensual use causes severe distress. | Conduct not outrageous enough to meet IIED standard. | IIED claim dismissed. |
| Whether sanctions against counsel are warranted | Sanctions unnecessary or excessive; opposition was legitimate. | Opposition plagiarized; frivolous conduct and misrepresentation. | Sanctions awarded in part; Ovadia fined $750; overall sanctions partly denied. |
Key Cases Cited
- Hoepker v. Kruger, 200 F.Supp.2d 340 (S.D.N.Y. 2002) (First Amendment can protect artistic works; §§50-51 limited to nonconsensual commercial use)
- Finger v. Omni Publ’ns Int’l, Ltd., 77 N.Y.2d 138 (N.Y. 1990) (prohibitions on nonconsensual use limited to advertising/trade purposes)
- Time, Inc. v. Hill, 385 U.S. 385 (U.S. 1967) (publication for profit does not negate First Amendment protection of expression)
- Arrington v. New York Times Co., 55 N.Y.2d 433 (N.Y. 1982) (trade-use evaluation encompasses more than mere profit motive)
- Preston v. Martin Bregman Prods., Inc., 765 F.Supp.116 (S.D.N.Y. 1991) (isolated use of name/image may be insufficient for liability)
- Netzer v. Continuity Graphic Assocs., Inc., 963 F.Supp.1308 (S.D.N.Y. 1997) (incidental use/isolated reference generally not actionable under §§50-51)