BHA=Butthead Actress?

Displaying breathtaking self-importance Lindsay Lohan has sued eTrade for commercial misappropriation of her name and personality in a television ad.  In the ad the e-Trade talking baby (I preferred the earlier baby’s personality–this one acts like one of Vince Vaughn’s and Jon Favreau’s pals in “Swingers”) explains that he didn’t call his girlfriend the night before because he was busy trading his portfolio.  The off-screen girlfriend asks whether “that milkaholic, Lindsay” was over.  The baby plays dumb but then a baby girl enters the scene to ask “milk-a-what?”  Lohan claims the use of a ditzy, dense baby named Lindsay violates her right “to the exclusive control of the commercial use of her likeness, name, characterization and personality.”  Her suit seeks damages of $100 million.

This reminds me of astronomer Carl Sagan’s suit against Apple Computer in the early 1990’s.  Apple code-named a development project “Carl Sagan.”  That might have been flattering by itself but Apple code-named contemporaneous projects “Piltdown Man” and cold fusion,” two well-known science hoaxes.  These internal code-names became public knowledge.  Sagan objected to Apple’s suggesting by association that he was a fraud and demanded that Apple rename the project.  Apple complied,  renaming the project BHA–for “butthead astronomer.”  Not amused, Sagan sued Apple for misappropriation, libel, and other claims.  In rejecting the libel claim the court reasoned

[a]ny reader exposed to such a publication would likely have knowledge of the context in which the language was used. A reader aware of the context would understand that Defendant was clearly attempting to retaliate in a humorous and satirical way against Plaintiff’s reaction to Defendant’s use of his name. A reasonable reader would further conclude that the use of the term “astronomer” did not imply that Plaintiff was a less than able astronomer, but that the word was a merely a means of identifying Plaintiff. Finally, a reasonable reader would conclude that the phrase “Butt-Head Astronomer” did not imply that Plaintiff was legally wrong in asking Defendant to cease using his name.

Sagan v. Apple Computer, Inc., 874 F. Supp. 1072 (C.D. Cal. 1994).  Sagan and Apple settled the suit’s other claims in 1995 on undisclosed terms.

Lohan claims that many people say she “was the first person they thought of when they saw the commercial.”  Lohan claims to have one-name recognition comparable to Madonna and Oprah.  Not to me, but my demographics may rule me out. Unlike Madonna and Oprah, Lindsay has been in common usage for many years.  Neither Madonna nor Oprah has been in the top 1000 birth names in the past 35 years.  According to the SSA website in 1986, when Lohan was born, Lindsay was the 46th most popular female birth name in the U.S..  Its highest rank in the past 35 years was 1984 when it ranked 36th.  Lindsey ranked 35th in 1983 and 1984 and 39th in 1986.  They would be higher if the rankings were done on pronunciation rather than spelling.  Lindsay’s popularity has declined dramatically over the past decade, almost precisely in line with Lohan’s career arc.  Does correlation = causation?  As a lawsuit Lohan v. E-Trade has no legs.  As a strategy for promoting the Lohan brand it appears to be attracting more ridicule than sympathy.

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