After being allowed to move forward in a lawsuit against Take-Two Interactive, publisher of the popular Grand Theft Auto games, Lindsay Lohan has crashed. On Thursday, a New York state appellate court directed a trial court to dismiss her lawsuit.
Lohan sued under New York’s version of a right of publicity statute, claiming that Grand Theft Auto V had misappropriated her likeness with a character named “Lacey Jonas,” who eludes paparazzi. She further alleged that the game had references to her star turn in Mean Girls and the West Hollywood hotel where she once lived, and that the publisher in merchandise has “used a look-alike model to evoke the persona and image” of Lohan by imitating a photograph that was once taken of her in 2007.
Rather surprisingly, given New York’s narrow law and Lohan’s past legal losses, a judge rejected a motion to dismiss in March.
On Thursday, New York’s appellate division first department took a look at both this case as well as one involving ex-Mob Wives star Karen Gravano, who brought a similar lawsuit against Take-Two over Grand Theft Auto V. Gravano had filed a $40 million complaint over the character of “Andrea Bottino,” who allegedly used the same phrases the plaintiff did, had a father who was a government informant and had a mutual connection with reality television. Gravano’s suit was given a green light by the same trial judge in the Lohan lawsuit.
“Both Gravano’s and Lohan’s respective causes of action under Civil Rights Law § 51 must fail because defendants did not use [plaintiffs’] name, portrait, or picture,” states today’s opinion. “Despite Gravano’s contention that the video game depicts her, defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her. As to Lohan’s claim that an avatar in the video game is she and that her image is used in various images, defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan.”
The panel of appellate judges adds that even if the depictions were “close enough,” the claims still fail because a “video game does not fall under the statutory definitions of ‘advertising’ or ‘trade,'” and that Grand Theft Auto‘s “unique story, characters, dialogue, and environment, combined with the player’s ability to choose how to proceed in the game, render it a work of fiction and satire.”
This isn’t the first time Lohan learned that New York’s law doesn’t protect her likeness in a non-advertising context. See the lawsuit she filed when her name was included in a song by the rapper Pitbull.
And her allegations that the video game publisher put the image of the blond character that looked like her on merchandise like T-shirts and coffee mugs doesn’t save her lawsuit either. The appellate decision finishes: “The images are not of Lohan herself, but merely the avatar in the game that Lohan claims is a depiction of her.”