Game Over: Lindsay Lohan Loses Legal Battle Against Grand Theft Auto Creators - Fordham Intellectual Property, Media & Entertainment Law Journal
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Game Over: Lindsay Lohan Loses Legal Battle Against Grand Theft Auto Creators

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 unlockables14 to inspiring shootings.15 The series has stirred heated protest (see generally, Jack Thompson16) 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.

  1. See Owen Good, Lindsay Lohan’s lawsuit against Grand Theft Auto 5 was shot down by New York state’s highest court, Polygon (Mar. 31, 2018), [].

  2. See Lohan v. Take-Two Interactive Software, Inc., No. 24, 2018 WL 1524714, at *1 (N.Y. Mar. 29, 2018).

  3. Id.

  4. Id. at *2.

  5. Id.

  6. Id. at *4.

  7. Id.

  8. See Arrington v. New York Times Co., 55 N.Y.2d 433, 439 (1982).

  9. See Lohan, 2018 WL 1524714, at *4.

  10. Id. at *5.

  11. Id.

  12. See Eriq Gardner, Lindsay Lohan Loses Lawsuit Against Pitbull Over Hit Song, Hollywood Reporter (Feb. 21, 2013), [].

  13. See Lohan v. Perez, 924 F. Supp. 2d 447, 461 (E.D.N.Y. 2013).

  14. See Dameon Hatfield, Hot Coffee Lawsuit Finally Mopped Up, IGN (Nov. 9, 2007) [].

  15. See Justin Calvert, Families sue over GTA III-inspired shooting, Gamespot (Oct. 23, 2013), [].

  16. See Julian Benson, The Rise and Fall of Video Gaming’s Most Vocal Enemy, Kotaku (Sept. 15, 2016), [].

  17. See Amanda Avila, First Amendment Protects Modified Use Of Strip Club’s Trademark In Controversial Video Game, Stanford Center for Internet and Society Blog (Feb. 12, 2009), [].

  18. See Max Cherney, This violent videogame has made more money than any movie ever, MarketWatch (Apr. 9, 2018), [].

John Bradshaw

John Bradshaw is a second-year J.D. candidate and a member of the Fordham Intellectual Property, Media & Entertainment Law Journal as well as Fordham’s Media and Entertainment Law Society. He will be working for The Davis Firm, a boutique entertainment firm, this spring.