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The game publisher behind Grand Theft Auto V is conceding nothing to Lindsay Lohan in her publicity rights lawsuit claiming it appropriated her image and persona. Instead, Take-Two Interactive claims in a new motion to dismiss that her amended complaint “suffers from even greater defects than the first one.”
Lohan has a record of pressing publicity rights claims, including suing E-Trade for a commercial featuring a “milkaholic” baby named Lindsay, and rapper Pitbull for the line “I’m tip-toein’, to keep flowin’, I got it locked up, like Lindsay Lohan.”
The actress sued Take-Two and its subsidiary Rockstar Games in July over characters in GTAV she alleges are based on her. She takes issue with two transitional screen images that depict blonde women Lohan says resemble her, as well as a side mission in which the player is tasked with helping a young actress named “Lacey Jonas” escape the paparazzi.
Take-Two responded with a motion not only to dismiss the lawsuit, but to sanction Lohan and her attorneys, calling the lawsuit so “legally meritless” it could only be a grab for publicity. The game publisher points in particular to her loss in the Pitbull case, arguing that the same law that applies to the song — a New York statute granting works of art complete protection against right of publicity claims — applies to GTAV.
The motion didn’t deter Lohan, who last month filed a longer amended complaint with 45 pages of exhibit images and several new arguments. It’s no good, Take-Two argues in its new motion, which reiterates the publisher’s request for sanctions.
Lohan’s new complaint “confirm[s] that this action lacks any good-faith basis and can only have been filed for publicity purposes,” the motion adds.
The actress is trying to circumvent New York’s protection of artworks against publicity lawsuits by claiming that Take-Two used the look-alike character in merchandising and advertisements, which her lawsuit holds are not similarly protected. Her new complaint includes pictures of mugs and T-shirts, as well as billboards, websites, posters and bus ads that show the character.
The game publisher responds claiming the merchandise is not official GTAV merch produced by it or Rockstar. If it were, the motion continues, it still wouldn’t be susceptible to Lohan’s lawsuit, because the New York publicity rights statute affords the same protection to merchandise and advertising of art as to the art itself, according to case law the motion cites.
The time the lawsuit was filed is another point of contention, with Take-Two arguing Lohan filed her claims over a year after the release of the artwork and the first depictions of the “Lacey Jonas” character. Lohan responded in her amended lawsuit alleging that when the game was released a year later, her image was modified to fit on the game disc, which constitutes a “republication” of her likeness that occurred within the statute of limitations. Not so, Take-Two argues.
A new publication is a “republication” only if it “(1) is intended for and reaches a new audience, or (2) materially changes or modifies the original,” according to a case the game publisher cites in the new motion to dismiss. In this case, the game’s release reached the exact same audience as earlier materials — fans and customers of GTAV — and “have consistently remained the same, with only minor alterations to their size and background,” according to Take-Two.
The litigious actress’s lawsuit isn’t the only ongoing case that concerns the use (or alleged use) of a real person in a video game. In a new complaint, a company that claims to be the worldwide agent of General George S. Patton‘s publicity rights has put in its crosshairs the creator of a game that features the iconic general, History Legends of War: Patton. CMG Worldwide has sued Maximum Games for false endorsement, unfair competition and violation of publicity rights, claiming that Maximum centered the game on Patton without permission to use his name, image and likeness.
The game publisher has not responded to a request for comment.
The CMG complaint is different from Lohan’s in that there’s no question of whether the game includes Patton. The recent cases over the use of real people in video games run the gamut with regard to who video games are able to depict and in what ways, and they indicate no certain fate for Lohan’s claims.
Gwen Stefani‘s lawsuit against the maker of Band Hero and former Rutgers QB Ryan Hart‘s claims against Electronic Arts over NCAA Football were allowed to continue until both cases were settled. But in a more recent ruling, a Los Angeles Superior Court judge shot down former Panamanian dictator Manuel Noriega‘s claims against Activision Blizzard that he’s depicted as a villain in the company’s Call of Duty: Black Ops II.
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