Lohan Loses Yet Another Right of Publicity Claim

By Jennifer E. Rothman
April 7, 2018

The actor Lindsay Lohan continued her losing streak with another right of publicity lawsuit being tossed out. Last week the New York Court of Appeals in Lohan v. Take-Two Interactive Software, put to bed her claim against the makers of the video game Grand Theft Auto V (GTAV).

Lohan had claimed that the video game depicted her in a scene in which paparazzi chase a blonde starlet, as well as in two transition images used in the game. Of those “transition screens,” one depicted a blonde woman in denim shorts, a fedora, large sunglasses and white t-shirt, being frisked by a police officer, and the other showed the same blonde woman wearing a bikini, and taking a selfie while making a peace sign.

The highest court of New York dismissed her claims, affirming the appellate division. The Court concluded that the generic blonde, twenty-something woman had no identifiable characteristics. Instead, she was “indistinct,” simply exhibiting the “style, look, and persona of a modern, beach-going young woman.”

Given that Lohan was not recognizable in the game, and her actual voice and photograph were not used in the game, the court dismissed her claim under New York’s statutory right of privacy, Civil Rights Laws §§ 50 & 51―that state’s right of publicity.

The decision is no surprise―the image looks as much like Lohan as it does Kate Upton, or a variety of other celebrities that my students have offered up over the last few years as potentially resembling the featured GTAV woman.

(The Court of Appeals also tossed a similar lawsuit by Karen Gravano, who objected to the character of Andrea Bottino in GTAV, concluding that she too was not recognizable.)

Other aspects of the opinion may be more important going forward: The Court was clear that computer-generated avatars fit within the purview of the current statute and its definition of a "portrait." This seems a reasonable interpretation of the statute, and one I predicted.

On a related note, although the Court declined to make a determination of whether the videogame fell within the definition of a use for the "purpose of trade" under the New York statute, which is limited to uses for “advertising or trade purposes,” the Court indicated that such uses may include noncommercial speech, such as motion pictures.

The Court once again cited to the 1913 decision in Binns v. Vitagraph in which the celebrated hero, Jack Binns, successfully brought a suit under New York’s privacy statute for the depiction of a character based on him in a motion picture. The movie told the story of Binns’s use of telegraph technology to save thousands of lives. (If you are interested in finding out more about that case and its ongoing relevance today, it is something I discuss in my book). The Court

Put together, these conclusions should be of particular interest to SAG-AFTRA who is seeking to upend New York’s longstanding privacy and publicity law to address concerns over reanimating actors. Here the Court sent a strong signal that such reanimations already fall within the purview of the statute.

Content creators, especially of video games and movies should not overlook these aspects of the case. The conclusion that avatars can be actionable, and that video games and motion pictures fall within New York’s privacy statute should lead them to tread somewhat carefully, especially with regard to promoting works.