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IP/Entertainment Case Law Updates

Lohan v. Take-Two Interactive Software Inc. and Gravano v. Take-Two Interactive Software Inc.

New York appeals court overturns lower court decision, dismissing claims by actress Lindsay Lohan and former “Mob Wives” star Karen Gravano against “Grand Theft Auto V” video game makers for misappropriating their likenesses, pointing out game never used plaintiffs’ names and photos, and video game was work of fiction and satire, which did not run afoul of statutory prohibition against using person’s likeness for purposes of “advertising” or “trade.”

Actress Lindsay Lohan and former “Mob Wives” star Karen Gravano each sued Take-Two Interactive Software Inc. and its subsidiary Rockstar Games, alleging the video game makers violated their right to privacy under New York state law by using their likenesses and images without permission in the game “Grand Theft Auto V.” A New York Supreme Court denied the defendants’ motion to dismiss Lohan and Gravano’s complaints and for sanctions.

The video game takes place in the fictional city “Los Santos,” which itself is in a fictional American state called “San Andreas.” Players control one of several main characters at various points in the game, engaging in approximately 80 main story missions as well as many optional random events. Lohan and Gravano alleged that during certain optional random events, the player encounters characters that are depictions of them.

Specifically, Lohan argued that the defendants used a lookalike model to evoke Lohan’s persona and image and “purposefully used Lohan’s bikini, shoulder-length blonde hair, jewelry, cell phone, and ‘signature peace sign’ pose’” in one image. The defendants used Lohan’s likeness in another image “by appropriating facial features, body type, physical appearance, hair, hat, sunglasses, jean shorts, and loose white top,” Lohan argued. In addition, Lohan claimed that her image was used in advertising materials for the video game.

Gravano maintained that the character allegedly depicting the same phrases she uses and that the character’s story line mirrors Gravano’s own history.

On appeal, a New York appellate court reversed the lower court’s ruling, dismissing Lohan and Gravano’s claims. The plaintiffs’ claims failed under New York Civil Rights Law Section 51 on the grounds that the defendants did not use their names, portraits or pictures. The appellate court pointed out that the defendants never referred to Lohan or Gravano by name, used their actual names or photographs, or used them as actors in the video game.

Further, the appellate court determined that even if it accepted Lohan and Gravano’s contentions that the video game is close enough to be considered a representation of the plaintiffs, their claims still fail because the video game does not fall under New York Civil Rights Law Section 51’s definitions of “advertising” or “trade.” Instead, the court found the video game’s story, characters and environment, together with the player’s ability to choose how to proceed in the game, rendered the video game a work of fiction and satire deserving of First Amendment protection.

Finally, regarding Lohan’s claim that her image was used in advertising materials for the video game, the appellate court found that “the images are not of Lohan herself, but merely the avatar in the game that Lohan claims was a depiction of her.”

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