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Lindsay Lohan continues her streak of eyebrow-raising publicity rights lawsuits with a new one that takes aim at Take-Two Interactive Software over Grand Theft Auto V, which she alleges features a character based on her.
“The portraits of [Lohan] incorporated her image, likeness, clothing, outfits, Plaintiff’s clothing line products, ensemble in the form of hats, hair style, sunglasses, jean shorts worn by the Plaintiff that were for sale to the public at least two years” before the game’s release, according to a complaint that was reportedly filed on Wednesday in New York.
For the litigious actress, the Grand Theft Auto lawsuit follows a 2000 action against E-Trade over a commercial that featured a “milkaholic” baby named Lindsay. Before that case was settled, Lohan’s lawyer argued that even though there are 250,000 “Lindsays” in America, her fame was so great that she deserved single-name status like Oprah or Madonna.
Then there was the 2011 lawsuit against Pitbull for rapping, “So, I’m tip-toein’, to keep flowin’, I got it locked up, like Lindsay Lohan.”
The lawsuit ended — not before Lohan’s lawyer was caught plagiarizing — when the judge ruled that an isolated use of her name in a nonadvertising context wasn’t enough to support a claim under New York’s personality rights statute.
According to initial reports of Lohan’s latest lawsuit, Grand Theft Auto V has references to her star turn in Mean Girls, paparazzi chases and the West Hollywood hotel where she once lived.
Will it be enough to demonstrate that she’s been exploited?
Notably, Take-Two has previously prevailed in lawsuits over likenesses in Grand Theft Auto.
For example, Michael “Shagg” Washington, a model and backup singer for the rap group Cypress Hill, failed in his own claims. In the case, a judge ruled, “Plaintiff is relying entirely on CJ’s physical appearance in the game, but that appearance is so generic that it necessarily includes hundreds of other black males.”
Even if Lohan gets more credit because she is famous and consumers would recognize her likeness in the game, the actress figures to be challenged on whether the character is a transformative fair use. Gwen Stefani once sued makers of Band Hero over the game showing her avatar singing a song about sex with prostitutes while her No Doubt bandmates did kooky dance moves. In advancing the lawsuit, the judge distinguished the difference between a literal depiction of an individual and an artistic rendering that adds creative elements. That lawsuit continued until it was settled.
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