California game lawyer Zachary Strebeck looks at the latest lawsuit from Lindsay Lohan, this time against Grand Theft Auto V creators Take-Two Interactive and Rockstar Games.
On July 2, Lindsay Lohan filed a lawsuit in New York Supreme Court against Take-Two Interactive and Rockstar Games. Lohan is claiming that the character of Lacey Jonas in Grand Theft Auto V is using her likeness in violation of her right of publicity. She is suing under the New York right of publicity statute, according to reports (I haven’t gotten my hands on the actual complaint, however).
Lohan originally threatened Take Two with a suit in December.
She claims that:
the look and voice of the Lacey Jonas character is based on her, including her “likeness, clothing, outfits, [Lohan’s] clothing line products, ensemble in the form of hats, hair style, sunglasses, jean shorts worn by [Lohan] that were for sale to the public at least two years” before the game was released;
the game features a hotel named the Gentry Manor, which is based on a real Los Angeles hotel where Lohan lived for a time;
in-game actions related to the Lacey Jonas character include running from paparazzi and dialogue where the character discusses “how hard it is to be famous, complains about how she doesn’t need “any more lawsuits,” talks about breaking off contact with her “lame” family, makes it clear that she’s anorexic, and brags about how all of her fans could fill ‘the country of Africa, wherever that is’.”
Neither Take Two nor Rockstar have commented on the lawsuit.
Some Lacey Jonas dialogue from the game - warning: NSFW
Under New York publicity rights law, “any recognizable likeness, not just an actual photograph” is protected. Should the court find that the various elements of the Jonas character are a recognizable likeness of Lohan, she could prevail on proving that Take-Two and Rockstar have infringed.
Reports point out that it has been confirmed that the character portrait, at least in the advertisements, is based upon model Shelby Welinder. This could be a big point against Lohan in the suit, though her claim is not based entirely on physical appearance.
A major affirmative defense against a right of publicity infringement is to claim that the use is protected under the First Amendment. There are broad protections for expressive speech under the U.S. Constitution, particularly for parody and satire. Rockstar’s game is a satire of the Hollywood/Los Angeles area, and it is very possible that they could show that the Jonas character in particular is a satirical portrayal of a prototypical starlet who has gone off the rails (like the real-life Lohan). Though, as one attorney points out, the decisions surrounding the First Amendment are “complete anarchy.”
Activision lost a lawsuit brought by Gwen Stefani, who alleged that her portrayal in one of their Band Hero game was an infringement. There was a distinction made by the judge between a “literal portrayal” of a person and an “artistic rendering that adds creative elements.” A distinction like this could prove dispositive in the Lohan case.
Take-Two has defended against a similar suit before, from a man who claims that GTA:San Andreas’ CJ was based on his likeness. The appearance of the in-game character was ruled to be “generic,” and not an infringement.
Lohan herself has been rather litigious over her right of publicity, previously suing rapper Pitbull unsuccessfully and settling with E-trade out of court.
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