Lohan Loses (Yet Another) Publicity Rights Suit

by Manatt, Phelps & Phillips, LLP
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Lindsay Lohan has lost yet another publicity rights lawsuit, this time in New York’s highest court.

The self-described “celebrity actor” and “recognized [figure] in social media” sued Take-Two Interactive, the maker of the Grand Theft Auto video games. She alleged that her likeness was misappropriated by the “Lacey Jonas” character found in Grand Theft Auto V (GTAV).

The Jonas character hides from paparazzi in an alley, where she describes herself as an “actress slash singer” and the “voice of a generation.” Two screen images of the character appear in ads for the game: one of Jonas being frisked by a police officer and a second of the woman wearing a red bikini, taking a selfie, and displaying the peace sign with one hand.

The game manufacturer moved to dismiss Lohan’s suit. A trial court judge allowed the suit to move forward, but an appellate court reversed. The New York Court of Appeals affirmed dismissal of the suit.

New York’s Civil Rights Law article 5 provides that “[a]ny person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained … may maintain an equitable action … to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use.”

First, the court declared that a video game avatar—defined as “a graphical representation of a person, in a video game or like media”—can violate an individual’s publicity rights. Courts should employ the theory of statutory construction that general terms encompass future developments and technological advances, the court said.

“Operating under that standard, we conclude that an avatar may constitute a ‘portrait’ within the meaning of Civil Rights Law article 5,” the court wrote. “In view of the proliferation of information technology and digital communication, we conclude that a graphical representation in a video game or like media may constitute a ‘portrait’ within the meaning of the Civil Rights Law.”

Even with this understanding of the statute, however, Lohan failed to keep her suit alive, as the court found she was unrecognizable from the image in question.

“Here, the Jonas character simply is not recognizable as plaintiff inasmuch as it merely is a generic artistic depiction of a ‘twenty something’ woman without any particular identifying physical characteristics,” the court wrote. “It is undisputed that defendants did not refer to plaintiff in GTAV, did not use her name in GTAV, and did not use a photograph of her in that game. Moreover, the ambiguous representations in question are nothing more than cultural comment that is not recognizable as plaintiff and therefore is not actionable.”

The court affirmed dismissal of the suit.

To read the decision in Lohan v. Take-Two Interactive Software, Inc., click here.

Why it matters: New York’s highest court took the opportunity to unequivocally declare that state law includes video game avatars for purposes of protecting privacy and publicity rights. Despite making new law, Lohan continued her losing streak in her efforts to protect her rights. She previously settled a $100 million action against e-Trade over a 2010 Super Bowl commercial featuring a talking baby referring to “that milkaholic Lindsay” and had a challenge to Pitbull song lyrics (“I got it locked up like Lindsay Lohan”) thrown out.

 

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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