This turned out to be a pretty interesting decision. The ‘case in chief’ is sort of straightforward. The rapper Pitbull released a song ‘Give Me Everything’ which has the lyric ‘So, I’m tiptoein’, to keep flowin’/I got it locked up like Lindsay Lohan.’ Lindsay Lohan sues under NY Civil Rights Law Sections 50 and 51 (which prohibit the name, portrait, picture or voice to be used for advertising purposes without consent). Defendants prevail at the 12(b)(6) stage three ways: (1) First Amendment; (2) Use in a song’s lyrics is not ‘advertising’; and (3) If the song were deemed to be advertising, a mention in one line in a 104 line song is incidental and fleeting use (see pages 9 to 12 of the decision). Quite a weak claim but no sanctions because there wasn’t a lot of law on this fact pattern (p. 16).
Here’s where it gets interesting.
Lohan’s attorney’s papers were:
“rife with irrelevant discussion, . . . did not meaningfully address a single case cited by the
[defendants] in support of their motion to dismiss, cited a case without disclosing it had been
reversed, and essentially ignored every argument made by the [defendants].” . . . According to defendants, the reason that the Opposition
did not address the salient points raised in their motion to dismiss was because it was actually
taken “nearly entirely and verbatim” from a legal memorandum plaintiff filed in an entirely
different case. (Id. at 16 (emphasis omitted) (noting that approximately 14 or 15 pages of the
Opposition were copied from a prior legal brief).) Plaintiff does not dispute this assertion. (footnote 6)
Lohan’s attorney was sanctioned $750 for the plagiarism. However footnote 13 is also of interest:
The Court also notes, parenthetically, that it is underwhelmed by the nature of
defendants’ counsel’s conduct upon learning of plaintiff’s counsel’s plagiarism. Defendants’
counsel recognized the existence and extent of the plagiarism as early as March 9, 2012 … However, even though defendants’ counsel corresponded with plaintiff’s counsel on that date and again on March 12, 2012, they made no mention of these issues … Defendants’ counsel certainly had the option of raising the issue with plaintiff’s counsel, thereby affording plaintiff’s counsel the opportunity to withdraw the Opposition and request leave from the Court to amend the opposition papers. Instead, the first time defendants’ counsel raised the issue was when they filed the fully-briefed motion to dismiss and highlighted the plagiarism as part of the reply papers.
So here’s the question for discussion. To what extent are you your adversarial counsel’s keeper?