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Lohan v. Perez

United States District Court, E.D. New York

February 21, 2013

Lindsay LOHAN, Plaintiff,
v.
Armando Christian PEREZ also known as Pitbull, Shaffer Chimere Smith, Jr. also known as Ne-Yo, Nick Van de Wall also known as Afrojack, J. Records, Sony Music Entertainment, Sony Music Holdings Inc., RCA Music Group, Polo Grounds Music, Polo Grounds Music Publishing, Inc., Polo Grounds Music, Inc., Mr. 305, Inc., Mr. 305 Enterprises, Inc., Joe John, and Jane John, 1 Through X, Defendants.

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Stephanie G. Ovadia, Esq. by Stephanie G. Ovadia, Esq., East Meadow, NY, for Plaintiff.

McDermott Will & Emery LLP by Audrey M. Pumariega, Esq. (Pro Hac Vice), Marcos Daniel Jimenez, Esq., Miami, FL, Kasowitz Benson Torres & Friedman LLP by Sarah Gibbs Leivick, Esq., New York, NY, for Defendants.

Krinsky, PLLC by Pery D. Krinsky, Esq., New York, NY, for Respondent Stephanie G. Ovadia, Esq.

Anand Ahuja, Esq., Richmond Hill, NY, Pro Se.

MEMORANDUM AND ORDER

HURLEY, Senior District Judge:

Plaintiff Lindsay Lohan (" plaintiff" ) commenced this action against defendants Armando Christian Perez (a/k/a Pitbull) (" Perez" ), Shaffer Chimere Smith, Jr. (a/k/a Ne-Yo) (" Smith" ), Nick Van de Wall (a/k/a Afrojack) (" Van de Wall" ), J. Records, Sony Music Entertainment, Sony Music Holdings Inc., RCA Music Group, Polo Grounds Music, Polo Grounds Music Publishing, Inc., Polo Grounds Music, Inc., Mr. 305, Inc., Mr. 305 Enterprises, Inc., Joe John, and Jane John, 1 through X (collectively, " defendants" ), asserting that defendants violated Sections 50 and 51 of the New York Civil Rights Law by using plaintiff's " name, characterization, and personality for advertising purposes, and for purposes of trade and commercial benefits" without her consent. (Compl. ¶ 24.) Plaintiff has also asserted claims for unjust enrichment and intentional infliction of emotional distress, and seeks monetary and injunctive relief.

Presently before the Court is defendants' motion, made pursuant to Federal Rule of Civil Procedure (" Rule" ) 12(b)(6), seeking dismissal of the Complaint for failure to state a claim. After that motion was fully briefed and filed, defendants filed a separate motion seeking sanctions against plaintiff and her counsel, Stephanie G. Ovadia, Esq. and Anand Ahuja, Esq., for " asserting and continuing to advocate frivolous claims in bad faith and committing extensive plagiarism in [the] Memorandum of Law in Opposition to Defendants' Motion [to] Dismiss the Complaint." (Defs.' Apr. 4, 2012 Letter at 1.) For the reasons set forth below, defendants' motion to dismiss the Complaint is granted and defendants' motion for sanctions is granted in part and denied in part.

BACKGROUND

The following facts are drawn from the Complaint and are presumed true for purposes of these motions.

The Parties

Plaintiff was at all relevant times " a professional actor of good repute and standing in the Screen Actors Guild." (Compl. ¶ 2.) Defendants Perez, Smith, and Van de Wall each " served in the capacity of creator, writer, lyric writer, artist, and singer of the song ‘ Give Me Everything’ " (the " Song" ). ( Id. ¶¶ 3-5.) Defendant J. Records is an American record label owned and operated by defendants Sony Music Entertainment and Sony Music Holdings Inc., ( id. ¶ 6), which are owned, in turn, by defendant RCA Music Group ( id. ¶ 9). Defendant Polo Grounds Music is a " record label [and] a hip hop and full service entertainment company" that is owned and registered as a corporation under the names Polo Grounds Music Publishing, Inc. and Polo Grounds Music, Inc. ( Id. ¶ 11.) Defendant Mr. 305 is a record

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label registered under the name Mr. 305 Enterprises, Inc. ( Id. ¶ 13.) Each of these defendants was allegedly " engaged, directly or indirectly in the creation, publishing, management, marketing, and promotions" of the Song. ( Id. ¶ 10; see also id. ¶¶ 8, 12 & 14.)

The Song

The Song " was and is a popular song of an international reputation and exerts a great influence throughout [the] United States, and other countries, and in the television, entertainment business and field of communication as well." ( Id. ¶ 16.) Plaintiff alleges that the Song " includes an unwarranted, unauthorized, and unfavorable mention of [her] name and personality, and allusions to [her] physical and mental character." ( Id. ¶ 18.) Specifically, approximately one-third of the way through the song, plaintiff's name is used as follows: " So, I'm tiptoein', to keep flowin'/ I got it locked up like Lindsay Lohan." (Decl. of Courtney Caprio, dated Jan. 17, 2012, Ex. A at 1.) [1]

The Song was released on March 18, 2011 and has aired between that date and the present on radio broadcasts, the internet (including on blogs and websites such as www. youtube. com), and television in the State of New York (and elsewhere). (Compl. ¶ 19.) On June 21, 2011, the Song was incorporated and released on Perez's album, entitled " Planet Pit." ( Id. ¶ 20.)

Plaintiff alleges that she did not consent to or authorize the use of her name in the Song, and that the " appearance of [her] name and characterization" in the Song " causes [her] to be associated and identified in connection with defendants." ( Id. ¶¶ 19, 21.) Plaintiff further alleges that defendants used plaintiff's name in the Song " for advertising purposes, and for purposes of trade and commercial benefits." ( Id. ¶ 24.)

The Complaint

In the Complaint,[2] plaintiff alleges that she is entitled to monetary and injunctive relief, and asserts (1) that defendants violated New York Civil Rights Law Sections 50 and 51 by using her name in the Song, (2) an unjust enrichment claim, and (3) a claim for intentional infliction of emotional distress.

DISCUSSION

I. Defendants' Motion to Dismiss

A. Legal Standard

1. Rule 12(b)(6)

Rule 8(a) provides that a pleading shall contain " a short and ...


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