Leggo My Likeness Part V: Grand Theft Right of Publicity?

by Greenberg Glusker Fields Claman & Machtinger LLP
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This year, several important video game lawsuits helped clarify the parameters for using a celebrity’s likeness in video games.  Generally speaking, courts have found that, unless you get permission, you can’t put a celebrity in a video game doing exactly what they do for a living in real life.  When I wrote about these cases earlier in the year, I joked that a game like “Lindsay Lohan:  Escape from Rehab,” simply would not work.  Ironically, Lindsay Lohan may actually be filing a lawsuit soon over a game with some equally outrageous plot-lines. According to TMZ, Lohan is upset over a virtual character in the new smash-hit game Grand Theft Auto 5 (game cover pictured above).

So does Lindsay (who is no stranger to filing meritless right-of-publicity lawsuits) actually have a chance against the game’s producer, Rockstar Games?

The Case for Lindsay

In Grand Theft Auto 5, players live in the fictional state of San Andreas (based on Southern California).  The game involves stealing cars, pursuing the almighty dollar and generally living the thug life in the city of Los Santos (which closely resembles Los Angeles and actually includes many notable LA landmarks).  Released on September 17, 2013, the game quickly became one of the best-selling games of all time, generating an astounding $1 billion in sales in its first three days.

So is Lindsay just trying to cash in on GTA5’s wild success?

At the outset, legal principles of um…due diligence…(yeah let’s go with that) compel us to make a thorough visual comparison:

Presumably, Lindsay might allege that this virtual GTA5 cover-girl bears a very striking resemblance to her.  On top of any such visual similarities, one of the missions in GTA5 requires the player to escort the hottie look-a-like home to escape the paparazzi.  If that wasn’t enough, the virtual look-a-like also appears in one of the in-game missions set in the game’s virtual version of the Chateau Marmont hotel in West Hollywood—a real-world place where Lindsay once lived and reportedly still patronizes.  What is the in-game mission, you might ask?  It’s to photograph the look-a-like having sex on camera, of course!

Seriously, though, if Ms. Lohan actually brings this lawsuit, she would probably have to claim both physical resemblance and lifestyle resemblance to the alleged look-a-like—(the latter of which is, in this case, tantamount to declaring moral bankruptcy).  Can she do it?

Problems With Lindsay’s Case

As we have written about before, under the laws of most states, a person has the right to control the commercial use of her identity or “likeness.” This right encompasses all of a person’s distinctive characteristics.  To establish a right of publicity claim, the plaintiff must prove misappropriation of her identity (among other things).

Unfortunately for Lindsay, justice-seeking internet sleuths have already created similar side-by-sides (undoubtedly for the sole and noble purpose of evaluating the legal merits of Lindsay’s potential claim).  As you can see (right), celebrity model Kate Upton, also looks quite similar to the GTA5 character.  Even worse for Lindsay, the GTA5 character is actually based on a real person—and it’s not Lindsay Lohan or Kate Upton—it’s a model named Shelby Welinder.

This leaves only one unique-ish identifier for Lindsay:  her patronage of the Chateau Marmont in West Hollywood.  But how many GTA5 players actually get to that part of the mission and say to their fellow gamers, “Hold everything—I think we just entered Lindsay Lohan’s distinctive hang-out spot” (followed by:  “Let’s keep our eyes out for sex tapes.”)

Probably not very many.

First Amendment Defense

Even if other evidence existed to bolster Lindsay’s case, she would still have to deal with what would probably be a formidable First Amendment defense from Rockstar Games.  Unlike other recent video game cases involving games where band members engage in virtual music-playing and football players play virtual football, the alleged look-a-like in this game is not doing what Lindsay does for a living—i.e., acting.  (On the other hand, query whether acting like a bad girl has itself created a unique identifier for Lindsay capable of legal protection.)  Although you won’t find the what-they-do-for-a-living test articulated in the cases, it has been an unannounced constant in several recent judicial decisions.  Of course, a real legal analysis would depend on all the evidence, a careful multi-factor analysis, etc., so this is all purely speculative fun at this point.

That being said, given the apparent low likelihood of Lindsay succeeding, I hope Lindsay does bring a lawsuit.  It would be refreshing to see a videogame developer win one for a change.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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