Attorneys for hip-hop artist Pitbull have asked a federal judge in New York to dismiss a lawsuit brought by Lindsay Lohan over a song that mentioned her by name. The actress is suing over an alleged infringement of her publicity rights, but the defendant warns of the consequences if a judge agrees to allow her claims to get to trial.
The song, “Give Me Everything,” included this line: “So, I’m toptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan.”
A healthy dose of sensitivity caused Lohan to sue Pitbull (real name: Armando Christian Perez), Sony Music, RCA Music, and others last year for causing her “tremendous emotional distress” with words that were allegedly “destined to do irreparable harm” to her image as “a professional actor of good repute.”
Last week, the rapper responded in court by saying that the song is protected by the First Amendment. The musician cites a number of other artists, from Crosby, Stills, Nash & Young to Eminem, who have mentioned celebrities in songs, and tells the judge to be wary of putting publicity rights above free speech rights.
“Sustaining Ms. Lohan’s allegations would lead to absurd results: the use of a celebrity’s name in any work of art — such as a song, poem or painting — would trigger liability,” says the defendant in court papers. “Indeed, if Ms. Lohan is allowed to proceed with her claim, every recording artist could be gagged and prevented from expressing his or her thoughts in songs, including the other recording artists who have referred to Ms. Lohan in their songs but whom she has not sued.”
By way of example, in a footnote, Pitbull says that Lohan’s name has been mentioned by Eminem in a song with lyrics like “Hello Lindsay you’re looking a little thin, hun’; How about a ride to rehab?”
In another footnote, Pitbull says that in “Give Me Everything,” he also mentioned Ryan Seacrest, who was kind enough not to sue and instead welcomed him to perform his song live in Times Square on Dick Clark’s Rockin’ New Year’s Eve 2012.
Pitbull gives the judge other reasons to dismiss the lawsuit, including that the use of Lohan’s name was not for advertising or trade purposes, that the use of the name was de minimis, that the First Amendment also bars Lohan’s claims of emotional distress, and perhaps most interestingly, that Lohan’s publicity rights don’t apply to newsworthy events or matters of public interest like Lohan’s widely reported troubles with the law.
The “newsworthiness exception” has been applied to magazines, newspapers, and recently television shows, and Pitbull says it should apply to songs as well.
Here’s Pitbull’s full motion to dismiss: