April 6, 2018
In a closely watched case involving New York’s statutory right of privacy, New York’s highest court shot down Lindsay Lohan’s claim that she was featured in the “Grand Theft Auto V” (“GTAV”) video game without permission.
The former child star, now 31, argued that “Lacey Jonas,” a “really famous” “actress slash singer” fleeing paparazzi in the game, evoked her “image, portrait and persona” and that her “voice resemblance and accent” had been used for the game set in “Los Santos,” a fictionalized Los Angeles.
Lohan commenced an action seeking compensatory and punitive damages for invasion of privacy in violation of Civil Rights Law §§ 50 and 51, which set forth New York’s limited right of privacy. Sections 50 and 51 authorize a civil action for damages and injunctive relief by “[a]ny person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade” without written consent.
The New York Court of Appeals first found that the “portrait” element of that statute embraces both photographic and artistic reproductions of a person’s likeness and that an avatar (that is, a graphical representation of a person in a video game or like media) may constitute a “portrait” within the meaning of the Civil Rights Law.
Lohan claimed she is depicted in GTAV as a minor character called “Lacey Jonas.” In an “Escape Paparazzi” scene, a GTAV player encounters “Lacey Jonas” attempting to escape a film set without being photographed by hiding from paparazzi in an alley. If a player helps Jones escape those photographers, she enters the player’s automobile before describing herself as an “actress slash singer” and the “voice of a generation.” Jonas also characterizes herself as “really famous,” and the player’s character recognizes “that Jonas has starred in romantic comedies and in a dance-off movie.” According to Lohan, who describes herself as a figure “recognized in social media” and as “a celebrity actor[ ] who has been regularly depicted in television, tabloids, blogs, movies, fashion related magazines, talk shows, and theatre for the past 15 … years,” the Jonas character is her “look-a-like” and misappropriates her “portrait[ ] and voice.”
Lohan also claimed to be represented in two forms on promotional materials, box art, advertising and loading screens. One such screen contains an image (the “Stop and Frisk” image) of a blonde woman clad in denim shorts, a fedora, necklaces, large sunglasses, and a white t-shirt being frisked by a female police officer. The second screen contains an image (the “Beach Weather” image) depicting the same blonde woman wearing a red bikini and bracelets, taking a “selfie” with her cell phone, and displaying the peace sign with her hand. Lohan claimed that the “Stop and Frisk” and “Beach Weather” images each cumulatively evoke her “images, portrait[,] and persona.”
The Court of Appeals was not convinced. Finding for game maker Take-Two Interactive Software, Inc., the Court found the Jonas character “merely is a generic artistic depiction of a ‘twenty something’ woman without any particular identifying physical characteristics” and that the two female computer-generated images are simply not “recognizable” as Lohan. “Those artistic renderings are indistinct, satirical representations of the style, look and persona of a modern, beach-going young woman,” Judge Eugene M. Fahey wrote for the high court. “The ambiguous representations in question are nothing more than cultural comment that is not recognizable as plaintiff [Lohan] and therefore is not actionable.”
The New York high court’s ruling avoided the highly watched First Amendment issue that had drawn interest from industry groups including the Motion Picture Association of America, the Entertainment Software Association and the American Booksellers Association. They urged the court to broadly rule that the use of real people in video games is not subject to New York’s statutory right of privacy. In rejecting Lohan’s claim in 2016, an intermediate New York appeals court had found that New York’s statutory right of privacy covers only the use of a person in “advertising” or “trade,” not in “a work of fiction and satire” like “Grand Theft Auto V.” The Court of Appeals ruling did not address whether GTAV was the kind of “commercial” activity that New York law covers. Thus, the extent to which the New York law of privacy extends to video games like GTAV remains somewhat unsettled, although at least one intermediate appellate court (the First Department, which includes Manhattan) views video games like GTAV to be satire and fiction not within the gambit of sections 50 and 51.
Click here to see the Court of Appeals decision in Lohan v. Take-Two Interactive Software.
On the same grounds, the Court of Appeals rejected the publicity claim of Karen Gravano, a reality star and daughter of Salvatore “Sammy the Bull” Gravano, a former underboss of the Gambino crime family. Gravano claimed GTAV depicted her in the avatar named “Andrea Bottino.” Click here for the Gravano decision.
This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. If you need assistance with a particular IP, commercial or employment issue, including concerning the right of privacy, Larry Brocchini would be pleased to consider providing additional details or advice about specific situations.