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On Thursday, Lindsay Lohan failed to convince the highest state appellate court in New York to revive her lawsuit against Take-Two Interactive, publisher of the popular Grand Theft Auto games. The actress alleged her likeness was misappropriated via a character in Grand Theft Auto V, but the appellate judges don’t see enough of a resemblance.
Lohan filed the lawsuit back in 2014 and experienced some surprising early success when a trial judge allowed her to advance the claim that the game referenced her star turn in Mean Girls, the West Hollywood hotel where she once lived, and treaded upon her likeness with a character named “Lacey Jonas,” who eludes paparazzi. Then, in September 2016, an appeals court reversed the decision with the determination that under New York Civil Rights Law § 51, the video game publisher didn’t really use her name, portrait or picture — and so, her privacy couldn’t have been violated.
The case then went up another step on the appellate ladder — with the Motion Picture Association of America, the Entertainment Software Association, and the American Booksellers Association supporting Take-Two’s position against Lohan.
Today, the New York Court of Appeals comes to a slightly different analysis, but ultimately agrees that Lohan’s lawsuit should be dismissed.
When analyzing what constitutes a “portrait” under New York state law, Associate Judge Eugene Fahey discusses how digital technology evolves and that laws must be interpreted with an eye toward encouraging invention. And so, settling any doubt on the matter, avatars in video games will be treated as no different than images in photographs for purposes of enforcing New York’s laws protecting one’s privacy and publicity rights.
“In view of the proliferation of information technology and digital communication, we conclude that a graphical representation in a video game or like media may constitute a ‘portrait’ within the meaning of the Civil Rights Law,” writes Fahey.
Next, though, comes the question of whether the “Lacey Jonas” avatar is Lindsay Lohan.
“Here, the Jonas character simply is not recognizable as plaintiff inasmuch as it merely is a generic artistic depiction of a ‘twenty something’ woman without any particular identifying physical characteristics,” continues the opinion. “The analysis with respect to the Beach Weather and Stop and Frisk illustrations is the same. Those artistic renderings are indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman. It is undisputed that defendants did not refer to plaintiff in GTAV, did not use her name in GTAV, and did not use a photograph of her in that game. Moreover, the ambiguous representations in question are nothing more than cultural comment that is not recognizable as plaintiff and therefore is not actionable under Civil Rights Law article 5.”
Concurrently with this opinion (read here) comes a loss for ex-Mob Wives star Karen Gravano, who brought a similar lawsuit against Take-Two over the character of “Andrea Bottino” in Grand Theft Auto V. The appeals court fails to see a recognizable image there as well.
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