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The game company not only wants the lawsuit dismissed, but it demands sanctions too.
“Lindsay Lohan complains that her image and persona have been wrongfully used by Take-Two in the video game Grand Theft Auto V, but her claim is so legally meritless that it lacks any good-faith basis and can only have been filed for publicity purposes,” states the defendant’s memorandum to support dismissal.
Lohan sued in July with a claim that a character named “Lacey Jonas” in the game was based on her persona. In her lawsuit, she cited references to her star turn in Mean Girls, paparazzi chases and the West Hollywood hotel where she once lived.
Take-Two is responding to the lawsuit by pointing to her previous legal failings, and in particular, her unsuccessful lawsuit against the rapper Pitbull for referencing her in lyrics. The defendant submits that the ruling in that case provided notice that “creative works are absolutely protected against these types of claims.”
In taking on Take-Two, Lohan has dispensed with the lawyers who were caught plagiarizing in the Pitbull case in favor of new legal representation that spelled her first name “Lindsey” in one part of the complaint. In fairness to the actress, she can at least point to some other plaintiffs experiencing success with publicity rights claims in video games, including Gwen Stefani‘s lawsuit against makers of Band Hero and a former Rutgers football player’s lawsuit against makers of NCAA Football. Both of those lawsuits advanced and ultimately settled after the plaintiffs undercut the video game defendants’ arguments about being transformative.
Take-Two believes it has a clear-cut case for First Amendment protection. The company says its game “is a fictional work set in a huge virtual landscape that parodies Los Angeles, California and its environs,” and as for the suggestion that “Lacey Jonas” is Lindsay Lohan, the company argues, “even if there was any resemblance between Ms. Lohan and the GTAV characters (which there is not), a creative work like GTAV simply cannot give rise to a right of publicity claim.”
The latter proposition is partly premised on the fact that New York’s publicity rights law only concerns works of “advertising” or “trade.” The game company makes the argument that Grand Theft Auto V is an artistic work and therefore doesn’t fit within the statute’s scope.
Watch a clip from the game below.
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Behind The Screen