Professional athletes are keeping a close eye on Lindsay Lohan this week, and probably not for the reason you might think.

Last Friday, the American Beverage Institute (“ABI”), a trade group that supports interests of the alcohol industry, took out an advertisement in USA Today, opposing the mandatory use of ignition interlocks (i.e., breathalyzers) in cars of first-time DWI offenders. The advertisement states “Ignition interlocks, A good idea for,” followed by a mug shot of Lindsay Lohan, “But a bad idea for us.”

ABI Managing Director Sarah Longwell recently told MTV.com that she believes Lohan’s mug shot is fair game because it is already in the public domain. Although it is not clear that Longwell's view is correct, the ABI has already indicated plans "to extend its mugshots campaign to other celebrities." This also could open the door for other organizations to begin using athlete and entertainer mug shots in all kinds of weird ways.

Lohan recently consulted her lawyer, expressing an interest in suing ABI to stop these ads. Although she probably does not have a claim under the Lanham Act, she may have a better argument that the ABI violated her state-law publicity rights. If Lohan ultimately files suit, athletes and entertainers will have their fingers crossed for her victory.

How does the legal landscape look for LiLo? Read more, after the jump.

Currently, nineteen states recognize a statutory right to publicity that prevents unauthorized use of one’s image for commercial gain. In Lohan’s home state of New York, for example, Sections 50 and 51 of its Civil Rights Law prohibit the unauthorized use for advertising or trade purposes of the name, portrait or picture of any living person.

State-law publicity rights are not absolute. Indeed, in the seminal case of Zacchini v. Scripps-Howard Broadcasting, 433 U.S. 562 (1977), the Supreme Court explained that some form of balancing is needed between state-law publicity rights and freedom of speech under the First Amendment. In recent years, lower courts have largely protected free speech, even at the expense of state-law publicity rights. For example, in the Tiger Woods Case (ETW Corp. v. Jireh Publishing Inc., 332 F.3d 915 (6th Cir. 2003)), the Sixth Circuit held that an artist may sell his unauthorized drawing of Tiger Woods without Tiger’s permission because the drawing included “substantial transformative elements” that require broad First Amendment protection. Then, last year in the Fantasy Stats Case (C.B.C. Distribution & Marketing, Inc. v. MLBAM, 505 F.3d 818 (8th Cir. 2007)) (previously blogged about here), the Eighth Circuit held that the First Amendment right to use baseball players’ names and statistics in fantasy sports contests trumps the players’ common law publicity rights because, amongst other reasons, fantasy sports statistics are already in the public domain. Nevertheless, both of these holdings were highly fact-specific.

ABI is likely banking on its entire advertisement being construed as political speech, which is the type of speech awarded the strongest First Amendment protection. However, it is not entirely clear the use of Lohan's image is really political. On one hand, the ABI advertisement overall is political because it petitions against imposing ignition interlock laws. On the other hand, the specific use of Lohan’s mug shot does not serve that same political purpose. One might even argue that the ABI’s only real reason for using Lohan’s image is to draw reader attention to the advertisement, and that the ABI's purported differentiation of Lohan from a first-time drunk driver is mere pretext for inserting her attention-grabbing image.

While there is no word yet on whether Lohan’s attorney plans to file suit, the facts here present an unusual case in a relatively unsettled area of law. Attorneys for both athletes and entertainers will be following these developments closely.

P.S. Two weeks ago, I discussed the case of Oscar Pistorius, the Olympic-hopeful runner who wears artificial legs. For another case about an athlete that has overcome tremendous adversity, check out Jacob Garcia, the 12-year old Washington Little Leaguer who wears an oxygen tank both on-and-off the field. Last week, an umpire threw Jacob out of his Little League game, ruling that his oxygen tank constituted illegal equipment. Little League Baseball has since issued an expedited ruling, allowing Jacob to again play ball.

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Marc Edelman is an attorney, business consultant, published author and professor, whose focus is on the fields of sports business and law. You can read his full bio by clicking here, and you can reach him by email by clicking here.