Is it Art or Advertising?

In today’s world it is getting tougher all the time to distinguish between marketing materials and art or entertainment.  For example, check out Beyoncé’s recent commercial for H&M, which features her new single, “Standing On The Sun.”  Some might think it a music video rather than a clothing ad.

Lindsay Lohan is having similar issues distinguishing between advertisements and entertainment. An unhappy Lohan sued rapper Pitbull, among others, complaining that the singer violated New York Civil Rights Law by using Lohan’s “name, characterization, and personality for advertising purposes” without her consent in the 2011 song “Give Me Everything.” The lyrics include this line:

 So, I’m tiptoein’, to keep flowin’/ I got it locked up like Lindsay Lohan.

Lohan argued in the suit in U.S. District Court that under New York Civil Rights Law, it is unlawful for any person to use the name, portrait or picture of any living person for advertising purposes, or for the purposes of trade, without having first obtained the written consent of such person, which she did not give Pitbull.

Pitbull countered that freedom of speech rights under the First Amendment presented a complete defense to Lohan’s claims because the civil rights law does not apply to works of art.

So the question for the court became whether the Lohan reference in Pitbull’s song was an ad or art. The court sided with Pitbull and dismissed the case earlier this year, ruling that:

the use of an individual’s name – even without his consent – is not prohibited by the New York Civil Rights Law if that use is part of a work of art….  The Supreme Court has made clear that “[m]usic, as a form of expression and communication, is protected under the First Amendment.” …  Thus, because the Song is a protected work of art, the use of [Lohan’s] name therein does not violate the New York Civil Rights Law.

That said, let us not forget the Beyoncé example above because sometimes works of art can be transformed into ads.  As such, it was probably wise of Beyoncé not to mention Lohan in her H&M spot.