Lindsay Lohan's Lawyer's Loopy Legal Argument Laced With Lifted Language?

from the why-don't-you-come-to-your-senses dept

Fri, Mar 23rd 2012 10:31am — Mike Masnick

Now here's a weird one. THResq has a report concerning Lindsay Lohan's lawyer in her ridiculous case against the rapper Pitbull. That lawyer has now been accused of plagiarizing most of a recent filing which tried to argue that Pitbull's First Amendment rights weren't an issue in the case. If you don't remember, Lohan sued Pitbull because he had a lyric in a song that reads "I got it locked up like Lindsay Lohan." According to Lohan's lawyer, this violates her publicity rights under NY state law. Publicity rights, of course, are a relatively recent phenomenon, found in various states, that are now being abused widely by semi-famous people to try to stop others from talking about them.

Lohan's lawyers seem to be particularly enamored with using publicity rights claims in new and increasingly bizarre ways. She's sued E*Trade for one of its commercials that refers to a baby named Lindsay and says she's a "milkaholic." Despite no other connection to Lohan, her lawyer insisted this was a violation of her publicity rights. Then there was the time that she threatened the jewelry store from which she took a necklace, leading to her arrest. What was the threat about? Believe it or not, the claim was that the video store surveillance footage was a violation of her publicity rights. Yeah.

Either way, Pitbull's lawyers filed their motion to dismiss (pdf) not too long ago, arguing that Lohan failed to state a legitimate claim:

... the First Amendment bars her claims because the Song is protected artistic expression. Moreover, the incidental use of Ms. Lohan's name was not for advertising and trade purposes and therefore is not proscribed by Section 51 as a matter of plain and unmistakable law. Ms. Lohan's remaining causes of action are equally baseless, since she has not -- and cannot -- allege facts warranting injunctive relief, monetary damages for severe emotional trauma or a finding of unjust enrichment.

Honestly, this should be a pretty easy case to dismiss, and I'd be surprised if the judge let it go much further. However, Lohan's lawyer, Stephanie Ovadia responded to that with an opposition filing that rambles on bizarrely about a variety of topics from the First Amendment to publicity rights to trademark law to consciousness (seriously, see below), with little effort to actually explain what that has to do with the case. For example, there are random discussions of "non-verbal expression," tattoos, inciting lawless behavior, trademark infringement, celebrity look-alikes and whether or not any of that is covered by the First Amendment. Of course, absolutely none of that has anything whatsoever to do with the case at hand or the issues it raises. Nor does Ovadia even attempt to try to connect these issues to the case.

There are also just some outright bizarre parts in the filing:

The threshold of consciousness is the dividing line between something that can be processed by the conscious mind and something that enters the subconscious mind without any such processing. A hidden message is not intense enough to produce a sensation but has sufficient intensity to influence the behavior and mental processes of one's mind. The decisions the conscious mind makes are based upon the knowledge and reasoning skills one has developed through experience and education....

It goes on in the same manner for a few more sentences, never once even coming anywhere near a legal point, nor referencing any part of the case.

Pitbull's lawyers quickly hit back with a filing (pdf) and exhibit (pdf) of their own, noting that Lohan's filing doesn't actually address the pretty clear legal issues raised in their initial motion... and also pointing out that perhaps the reason the filing is so nonsensical is because nearly all of it is plagiarized from random web sources, which they highlight in a handy chart. That bizarre quoted text above apparently comes from the Thinkquest library, which appears to be a project of the Oracle Education Foundation, and whose content is "created by students around the world who have participated in a ThinkQuest Competition."

Other sources include a bunch of copied paragraphs from the Thomas Jefferson Center for the Protection of Free Expression (who, I would guess, would likely come down on Pitbull's side in this case), the LA Times, the Association for Corporate Counsel's website, some presentation about publicity rights found on Docstoc, some law firm websites and a variety of other sources. I'm not a lawyer, but it's not hard to read the filing and wonder what the hell Ovadia was thinking. As THResq wonders, beyond helping to make sure that this case is unlikely to live much longer, the cutting-and-pasting throughout the legal filing might actually expose Lohan and Ovadia to copyright infringement charges themselves, especially from the law firms whose content was copied.

Update: Eriq Gardner, who wrote the THResq story has an update:

Reached for comment, Ovadia's office pointed the finger at Anand Ahuja, of counsel at the firm, who wrote the brief.

Ahuja was contacted too and says that he turned in "4 or 5 drafts to Stephanie, who looks like somehow by mistake submitted the first one."

He adds that typically his first draft includes footnotes and references and that it gets amended along the way, but that the submission was turned in past the judge's deadline, stripped of his footnotes, and that it was Ovadia's job to review it before signing and filing the document.

None of that makes Ovadia or her law firm look very good. First, I love the finger pointing between the two lawyers in the press. It's like reality TV inside a law firm. Second, Ovadia's name is on the filing. It doesn't matter if Ahuja wote it, she should have read it and realized that it was almost entirely nonsensical. Third, I don't know how they write "drafts" but cutting and pasting huge chunks of totally irrelevant information -- including a treatise on consciousness, just doesn't seem like a particularly reasonable practice.

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Filed Under: copyright, lindsay lohan, pitbull, plagiarism, publicity rights, stephanie ovadia

40 Comments

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Chris ODonnell (profile), 23 Mar 2012 @ 10:44am

//channeling Fark//

Nice headline subby ;)
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Anonymous Coward, 23 Mar 2012 @ 10:45am

seems to me that she is trying to jump on a similar band wagon to the one used by the 'pay up or else' copyright lawyers/trolls operating for the porn industry. 'i dont like that, so pay me!'
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Anonymous Coward, 23 Mar 2012 @ 10:49am

Baffling
Lohan's lawyer must subscribe to the old adage; "If you can't dazzle em with brilliance, baffle em with bullshit."
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Pickle Monger (profile), 23 Mar 2012 @ 10:56am

Sure. Makes sense.
Maybe it's just the reactive psychosis from all the over-work. Seems to be going around that one...
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Jon Renaut (profile), 23 Mar 2012 @ 10:58am

Re:
I'm trying and failing to find a synonym for "argument" that starts with L.
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David (profile), 23 Mar 2012 @ 11:12am

What she should do is
I think what she should do is offer to appear in the music video, behind bars, and looking surprised... But she does not have that much of a sense of humor about herself.

On the Other Hand, IANAL, but there is no First Amendment argument to be made. The First amendment prevents government suppression of speech.
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PlagueSD (profile), 23 Mar 2012 @ 11:14am

Re: Baffling
noting that Lohan's filing doesn't actually address the pretty clear legal issues raised in their initial motion... and also pointing out that perhaps the reason the filing is so nonsensical

It's the Chewbacca defense!!! (http://en.wikipedia.org/wiki/Chewbacca_defense)
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Anonymous Coward, 23 Mar 2012 @ 11:14am

Maybe they should make an "action figure" named Mike that does nothing but complain about the "legacy entertainment industry", the evil copyright laws, the horrible lawyers, the companies that protect their investments in research, the congressional members, etc. and occasionally talk about how smart the pirates are.
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Ima Fish (profile), 23 Mar 2012 @ 11:16am

"what the hell Ovadia was thinking"

I know what he is thinking, "This is a last time I have a first year law student write and file a response brief for me!"
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Anonymous Coward, 23 Mar 2012 @ 11:22am

Re: What she should do is
"On the Other Hand, IANAL, but there is no First Amendment argument to be made. The First amendment prevents government suppression of speech."

If copyright law, or publicity right law is keeping him from saying it, then it is the government that is suppressing the speach.
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Anonymous Coward, 23 Mar 2012 @ 11:23am

Re:
Yeah nice 'Llitteration.
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Anonymous Coward, 23 Mar 2012 @ 11:24am

Re:
Maybe they should make an "action figure" named Troll that does nothing but post mindless comments to every blog that Mike posts.
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Mike Masnick (profile), 23 Mar 2012 @ 11:30am

Re: What she should do is
On the Other Hand, IANAL, but there is no First Amendment argument to be made. The First amendment prevents government suppression of speech.

Using the law to suppress speech is absolutely a First Amendment issue, because it is government suppression of speech.
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Dark Helmet (profile), 23 Mar 2012 @ 11:32am

Re: Re:
Would we name that action figure Darryl?
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Anonymous Coward, 23 Mar 2012 @ 11:36am

Re: Re: Baffling
Except in this case THEY are the one's who BROUGHT the suit. So we have something new... Ladies and gentelmen... may we present... The Chewbacca Offense
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Baldaur Regis (profile), 23 Mar 2012 @ 11:36am

I COULD have been a lawyer.
And here I thought taking massive amounts of drugs in college would have precluded my admission to the Bar.
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slacker525600 (profile), 23 Mar 2012 @ 11:37am

re: the article's title
Id have said legalese instead of legal argument, to continue the alliteration ... and to point out the fact that the filing does not appear to actually contain an argument.
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Anonymous Coward, 23 Mar 2012 @ 11:39am

Re: Re: Re:
Or bob.
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Gwiz (profile), 23 Mar 2012 @ 11:40am

Re:
Nah. It would talk about the economics of reality and smart business models and then mock those who make stupid business decisions.

Of course it wouldn't be a worthwhile action figure unless it also had Kung-Fu Grip�.
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Anonymous Coward, 23 Mar 2012 @ 11:40am

Re: Re: Re:
Angry dude action figure with pants pissing grip!
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TtfnJohn (profile), 23 Mar 2012 @ 11:42am

The Slow Motion Train Wreck Continues
I had thought that Lohan's behaviour was and is bizarre enough all by itself. And as a recovering alcoholic and addict I'm often willing to give drug and booze induced behaviour a bit of a pass. Which is far from excusing it. (Or my own, if it comes to that, when I was out there or now.)

Now it seems to have infected her law firm.

This is proof positive that something affecting her is infectious and she needs to be kept away from the human population, at least the lawyer part of it who seem susceptible to this illness/insanity.

Now, let's return to the previously scheduled train wreck.
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Anonymous Coward, 23 Mar 2012 @ 11:42am

Re:
Uh... the lawyer's name is Stephanie Ovadia. I don't think that's a he.

And shouldn't a brief like that AUTOMATICALLY trigger a state bar association investigation?
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Anonymous Coward, 23 Mar 2012 @ 11:44am

Re: The Slow Motion Train Wreck Continues
No she probably just decided to hire a lawyer that she FOUND in a crack house.
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Baldaur Regis (profile), 23 Mar 2012 @ 12:20pm

Cease & Desist
YOU ARE hereby ordered to CEASE & DESIST discussing, talking about, or communicating, through gestures or use of any de novo device, of either human or penguin origin, the ideas or principles involved with an "action figure" named "Mike" (or subsequent iterations, see ibid et seq.) per USC 21.22sec33(a) EXCEPT as per ibid said action figure is referred to as "Fuzzy Mike".

YOU ARE further enjoined from the usage of the phrasiology "smart the pirates are" without bowing in the proximate direction of East (see Yoda vs USPS, etal), both before AND AFTER utterance.

I ATTEST, under penalty of perjury, that this CEASE & DESIST order is factual both de minimus and in toto, and that no pink filler was used.

/s/ Baldaur Regis, Esq.
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Anonymous Coward, 23 Mar 2012 @ 12:25pm

Re: Re: What she should do is
Ouch!
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Paul Renault (profile), 23 Mar 2012 @ 12:37pm

Close, but not quite close enough:
Lifted Language Laces Lindsay Lohan's Lawyer's Loopy Legal Letter.

/Huffs fingernails, shines.
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hegemon13, 23 Mar 2012 @ 12:43pm

Sounds like Lohan's lawyer said, "I'll have some of what she's having."
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Anonymous Coward, 23 Mar 2012 @ 1:17pm

Re: Re: Re: Re:
TAM in a kilt...call him TAM O'Shanter
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BentFranklin (profile), 23 Mar 2012 @ 1:24pm

Is technical writing like legal briefs really subject to plagiarism charges? There's a lot to be gained from standardization of language. I believe Judge Posner had something to say to that effect.
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Derek Kerton (profile), 23 Mar 2012 @ 1:30pm

Re: Re:
Litigation

Lawsuit

Lobo Santo
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Mike Masnick (profile), 23 Mar 2012 @ 3:39pm

Update added
Eriq Garnder updated his original story with some quotes from the law firm (finger pointing), and we've added an update to the post...
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Anonymous Coward, 23 Mar 2012 @ 3:57pm

It's interesting that Lindsay's people would go after Pitbull, but haven't said a word about or too Eminem who has name checked her in several of his songs including his single We Made You, Same Song and Dance and more.

Why the bias against Pitbull when her name's been used repeatedly by others?
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DandonTRJ (profile), 23 Mar 2012 @ 4:22pm

Re: Update added
The update actually makes sense to me. A first draft of a brief can often just be a giant authority dump, the point being that the reviewing attorney decides what raw material it's best to refine and focus the arguments on. If Ovadia just decided to throw that authority dump into a brief template, that's her fault.
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DandonTRJ (profile), 23 Mar 2012 @ 4:24pm

Re: What she should do is
You're thinking of a scenario where a private entity chooses not to give someone a forum. Any lawsuit against speech is inherently using the tools and force of the government to suppress speech, and thus a First Amendment issue.
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Anonymous Coward, 23 Mar 2012 @ 7:48pm

Re: Re:
Lucubration -- product of nocturnal study, usually pedantic or over-elaborate.
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Anonymous Coward, 23 Mar 2012 @ 8:00pm

Re:
How about:

Lifted Language Laces Lindsay Lohan's Lawyer's Loopy Legal Lucubration

Better yet?
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Rekrul, 24 Mar 2012 @ 1:02am

Re: Re:
I'm trying and failing to find a synonym for "argument" that starts with L.

Simple; Just replace "legal argument" with "legalese". :)
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Walks-In-Storms (profile), 24 Mar 2012 @ 8:02am

Ditzy Dingbat Lawyers (unless you prefer legalese).
Can I borrow some of this for use as feminist repellant? Or would that be plagiarism?

Better yet, would Ms. Ovada take the case?
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Anonymous Coward, 24 Mar 2012 @ 8:19am

Spelling
"Ovad" - What wasn't a spelling error on my part, just an effort to prevent my being sued for 'violation of publicity rights."
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Anonymous Coward, 26 Mar 2012 @ 9:07pm

Re: Re: Re: Re:
No shirts, though. Angry dude refuses to sell t-shirts, dammit.
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