Review the case's first evidence with exclusive documents and interviews from our behind-the-scenes tour of the suddenly contentious "milk-a-holic" commercial
This week Lindsay Lohan filed a much-talked-about defamation suit against the financial company E-Trade for its much-talked-about Super Bowl commercial featuring its famous talking-baby characters one of whom happens to share her first name. But Esquire.com was embedded with E-Trade's advertising firm, Grey Group, for what we thought was a harmless little inside look at the "milk-a-holic" ad's creative process one that now sheds first light on the case.
"Our contention is that though Lindsay is a popular girl's name, when you say it on television for advertising purposes, it's identifiable as Lindsay Lohan," the actress' lawyer, Stephanie Ovadia, told Esquire.com this morning. "You've got to look at the totality of the commercial to understand why we believe they are referring to Lindsay Lohan."
Well I was on-hand for the totality of the commercial's creation, and documents and interview notes show that while E-Trade had been consulted on Grey's changing the disputed character's name to Lindsay, the celebrity parallel was dismissed early on. In December, I asked Grey's chief creative officer, Tor Myrhen, whether "Lindsay" was a reference to Lohan. "Not at all. I don't think we even thought of it at the time," he told me. "Every aspect of that commercial was discussed in endless meetings with E-Trade. But we decided to keep it." (An E-Trade spokesperson, Allison Jeannotte, declined to comment this afternoon, saying that the company was reviewing the case.)
UPDATE (March 11, 4:01 p.m.) E-Trade's official statement: "While E*TRADE doesnt typically comment on pending litigation, we felt it appropriate given the high level of interest in the E*TRADE Baby. With the E*TRADE Baby, our advertising campaign is meant to be witty and memorable, while effectively communicating the powerful investing tools and services offered by E*TRADE. We believe the claims are without merit and we intend to defend ourselves vigorously in this case."
An original script dated August 11, 2009 has the "milk-a-holic" mistress-type character named "Deborah," but six weeks later that name was crossed out and replaced with "Lindsay" in the script below:
So does Lohan's suit (PDF), which accuses E-Trade of "knowingly using a likeness" of her name, hold any water? Ovadia, when informed of the details of Esquire.com's reporting, maintained "this commercial was conceived using Lindsay Lohan as a character without her knowledge or permission for the profit of the company."
We'll leave it to the judge, but know this: "milk-a-holic" is, in my humble opinion, the least derogatory of epithets that could have been thrown at the Lindsay baby. Witness earlier options in the bottom-left-hand corner of the document above, from "rug burn" and "jailbait" and, in an earlier Grey document, plain old "tramp."
E-Trade rejected Grey's preferred nickname "flank-steak woman" just three days after the name Lindsay appeared, opting instead for the tamer "milk-a-holic." Three months later, in the lead-up to the Super Bowl, Myhren actually still had concerns that E-Trade was being too tame in limiting his punch line. "We're locked in," he told me on January 8, "on everything except the very, very last word. It was something really aggressive but I thought hilarious. The girlfriend pops her head in and says, 'Say it to my milk-a-holic face!' I think it would have become a catchphrase, but E-Trade felt it was too aggressive. Provisionally, we have her saying 'Milk-a-what?' which doesn't quite have the edge. I think it falls flat, but I hope I'm wrong."
If a $100 million lawsuit was his idea of falling flat, the minds behind the E-Trade babies better just be glad they didn't call one of them a "firecrotch."