Washington v. Take-two Interactive Software, Inc., et al.

California appellate court affirms anti-SLAPP dismissal of misappropriation claim brought against Grand Theft Auto developers.

Plaintiff Michael “Shagg” Washington, a professional model and backup singer, sued defendants, the developers of Grand Theft Auto: San Andreas, for allegedly misappropriating his likeness in creating the main character of the extremely popular video game. The lower court granted defendants’ motion to strike under California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute and dismissed the suit. On appeal, California’s intermediate appellate court, in an unpublished opinion, affirmed the trial court’s dismissal, agreeing with the lower court that the subject of plaintiff’s suit was protected speech activity, and that plaintiff was not likely to succeed on the merits of his misappropriation claim.

Grand Theft Auto: San Andreas, as the court noted, is a video game in which players assume the identity of “CJ,” who must traverse the dangerous, fictional state of San Andreas after corrupt police officers frame him for a homicide. The video game was released in 2004. A year earlier, Washington met with San Andreas’ developers to talk about his personal history of “gang and street life” and whether defendants would use him as a model for the game’s main character. Plaintiff brought suit in 2010 alleging, among other claims, that defendants used his ideas and image for the game.

Parties moving to strike a lawsuit under California Code of Civil Procedure 425.16, the state’s anti-SLAPP statute, must show (1) that the claim sought to be dismissed targeted protected speech activity, and (2) that the non-moving party is unlikely to prevail on the claim. The appellate court first rejected plaintiff’s argument that his lawsuit targeted only the misappropriation of his likeness, not the broader activity of making a video game (which plaintiff did not dispute was a protected activity). The subject of plaintiff’s suit, according to the court, was the production of a video game that used his likeness without his permission. That the use was unauthorized did not change the fact that the target of the suit was the production of a video game, a form of protected activity.

The appellate court next found that plaintiff was unlikely to succeed on the merits of his claim. For the purposes of the anti-SLAPP motion, the court assumed that defendants had used plaintiff’s likeness but found the use sufficiently transformative. CJ was not a “literal depiction” of the plaintiff, according to the court, and beyond general physical characteristics shared by many people (e.g., skin color, hair, body type), CJ and the plaintiff did not share any unique traits (e.g., tattoos). The game also places the CJ character into settings and situations that the court found had no demonstrable analogue to the plaintiff’s life, including adventures in three fictional cities in the state of San Andreas, interactions with dozens of virtual characters, and confrontations with numerous social issues, including police corruption, race relations and drug dealing. Although a recent California appellate decision ruled that the video game depictions of the band members of the pop group No Doubt were not sufficiently transformative to insulate the video game defendant from a claim for misappropriation, the court distinguished that recent decision, explaining that the No Doubt case involved “exact depictions of No Doubt’s members doing exactly what they do as celebrities…Here, however, Washington has presented no evidence demonstrating that the plot or characters of GTA: San Andreas have any relevance to his life or his purported fame.” Because CJ was not a “literal depiction” of the plaintiff, the court held that defendants’ use of plaintiff’s likeness was sufficiently transformative to insulate defendants from liability for misappropriation.