Game Over: Lindsay Lohan Loses Legal Battle Against Grand Theft Auto Creators
On March 30th, 2018, the legal battle between Lindsay Lohan and Take-Two Interactive came to its expected conclusion.[1] In a unanimous decision, the New York Court of Appeals affirmed a 2016 ruling by the New York Supreme Court, dismissing Lohan’s claim that a character in Take-Two’s Grand Theft Auto V video game misappropriated her portrait and voice.[2]
Lohan accused Take-Two of creating the paparazzi-dashing, “voice of a generation” character “Lacey Jonas” in her image. Lohan also cited two other images of blond-haired female characters, shown in the game’s loading screens, as featuring similarities to herself. These similarities included “large sunglasses”, “wearing a red bikini top”, “taking a ‘selfie’”, and “displaying a peace sign with one of her hands.”[3]
The case focused on the questions of (1) whether an avatar in a video game can be considered a “portrait” within the parameters of New York Civil Rights Law §§ 50 and 51, and, if so, (2) whether Lohan’s rights had been violated by the avatar depicted in Take-Two’s game.[4] Under §§ 50 and 51, Lohan sought both punitive and compensatory damages for a violation of her privacy.[5] While the court agreed that an avatar may sufficiently constitute a “portrait” under New York Law, it did not believe such an avatar existed in this case.[6] The court described the images proffered by Lohan and her lawyers as “indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman that are not reasonably identifiable as [Lohan].”[7]
New York Civil Rights Law §§ 50 and 51 were originally “drafted narrowly to encompass only the commercial use of an individual’s name or likeness and no more.”[8] The court’s opinion states that, in the eyes of Civil Rights Law, a “portrait” could just as easily be an avatar from a video game as it could be a photograph or an artistic reproduction.[9] The court also noted that, “there can be no appropriation of a plaintiff’s likeness for commercial purposes if he or she is not recognizable from the [image in question].”[10] As such, the Court of Appeals affirmed the lower court’s determination that Lohan’s accusations were unfit for Civil Rights protection.[11]
Neither party in this case is a stranger to the court room. Lohan has also sued rapper Pitbull for character damage after the artist shouted her out in his 2011 song “Give Me Everything,” – featuring lyrics that read, “I got it locked up, like Lindsay Lohan.”[12] The lyrics were determined to qualify for First Amendment protection, and the case was dismissed.[13]
Take-Two, and specifically its Grand Theft Auto series, has been a party to several lawsuits, ranging in subject matter from hidden and sexually explicit game unlockables[14] to inspiring shootings.[15] The series has stirred heated protest (see generally, Jack Thompson[16]) as well as important discussion regarding free speech.[17]
Regardless of one’s feelings towards its content, the Grand Theft Auto series is undeniably a success. The latest chapter in the series and the subject of the Lohan case, Grand Theft Auto V, recently crossed the $6 billion line of sales, selling over 90 million copies and becoming the single-highest earning media title in history.[18] Undoubtedly, this enormous value makes the game, and its creators, an enticing target for a lawsuit.
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