Lindsay Lohan is getting serious in her lawsuit against Take-Two Interactive, the publisher of Grand Theft Auto V, replacing a 10-page complaint that at one point misspells her name with a new 67-page complaint that opens by discussing the “common interest among all celebrities, actors, singers, and athletes … to protect their likeness and personas from misappropriation by unscrupulous merchandisers.”
The actress has long been litigious on the publicity rights front, suing E-Trade over a commercial that featured a “milkaholic” baby named Lindsay as well as suing Pitbull for rapping, “So, I’m tip-toein’, to keep flowin’, I got it locked up, like Lindsay Lohan.”
Her latest lawsuit came in July when she objected to a Grand Theft Auto V character named “Lacey Jonas,” an actress who’s involved in a side mission where the protagonist must help her escape the paparazzi.
Take-Two not only wanted the lawsuit dismissed, but demanded sanctions on grounds “her claim is so legally meritless that it lacks any good-faith basis and can only have been filed for publicity purposes.”
On Wednesday, Lohan’s lawyers reacted to this gambit by stuffing 45 pages of pictured exhibits into an amended complaint, including a photograph of one of the game discs, which features a blond, red bikini–clad woman holding up the peace sign. According to the amended complaint, the game publisher “used a look-a-like model to evoke the persona and image” of Lohan by imitating a photograph that was once taken of her in 2007.
The actress still must confront the questionable decision to bring this lawsuit in New York — a state whose version of a publicity rights statute only concerns works of “advertising” or “trade.” But her lawyers are clearly attempting to overcome that hurdle by now alleging that Take-Two Interactive has been using an image of the blond character (allegedly Lohan) on merchandise like T-shirts and coffee mugs as well as in advertising on billboards, posters, buses, buildings and websites. The lawsuit also aims to counter any talk that the game represents a transformative fair use, which would invoke the free speech protections of the First Amendment.
“The Defendants were in the business of selling games as opposed to artists displaying artwork in galleries for profit where unauthorized images or portraits of individuals were reproduced in limited editions as opposed to the mass production for commercial promotion and financial gain.”
Take-Two has also raised a statute-of-limitations defense to Lohan’s lawsuit. The defendant points out that the original complaint had alleged that an announcement of the Grand Theft Auto side mission involving Lacey/Lindsay had come in June 2013, more than a year before the complaint was filed.
Lohan has reacted to this defense by pointing to the “republication” of her image upon the release of the actual video game later that year. According to the amended lawsuit, Take-Two modified her image to fit on the game disc. Lohan now claims that this “modification” should satisfy the exception to the one-year statute of limitation.
The lawsuit progresses concurrently with former Panama dictator Manuel Noriega‘s action against Activision Blizzard over the use of his persona in Call of Duty: Black Ops II.