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Headline: On March 29, 2018, the Court of Appeals of New York unanimously affirmed dismissal of a lawsuit brought by Lindsay Lohan against Take-Two Interactive Software, Inc., which asserted that the Lacey Jonas from Grand Theft Tự động hóa 5 infringed her right of publicity.

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Background: Take-Two’s Grand Theft Tự động hóa 5 (GTA V) is an action-adventure game set in a fictional state called San Andreas, which is intended to evoke Southern California. The plot of GTA V takes place in Los Santos, which in turn is intended to evoke Los Angeles. In one of the random events in the game, the player encounters Lacey Jonas hiding from paparazzi in an alley. The game describes her as an “actress slash singer” and the “voice of a generation.” Jonas characterizes herself as “really famous,” and the player’s character recognizes that Jonas has starred in romantic comedies and a cheerleader dance-off movie. Take-Two used images of the Jonas character on video game discs and on various promotional materials, including billboards.

Lindsay Lohan describes herself as a figure recognized in social truyền thông truyền thông media and as a celebrity actor who has been regularly depicted in television, tabloids, blogs, movies, fashion related magazines, talk shows and theatre for the past 15 years, and claimed that the Jonas character is her look-a-like and misappropriated her portrait and voice.

In July 2014, Lohan sued under New York’s Civil Rights Law, which provides a cause of action for injuries to “ny person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained.”

The lower court denied Take-Two’s motion to dismiss, but the appellate court reversed and ordered that the claims be dismissed, holding that GTA V did not use Lohan’s name, picture or portrait and that a video game does not constitute advertising or trade because it was a work of fiction and satire protected by the First Amendment. Lohan argued to the Court of Appeals that the Jonas character constituted a “portrait” of her and that Take-Two used the portrait in advertising.

Holding: The Court affirmed dismissal on the basis that the Jonas character was not a portrait of Lohan.

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First, the Court held that a video game avatar can constitue a portait within the meeting of the statute because a “portrait” embraces both photographic and artistic reproductions of a person’s likeness.

Second, the Court found that the Jonas character was not a portrait of Lohan. Under New York law, the person depicted maust capable of being identified from the advertisement alone as the plaintiff. The Court found that the Jonas avatar was not recognizable as plaintiff inasmuch as it merely was a generic artistic depiction of a twenty something woman without any particular identifying physical characteristics. The court found the artistic renderings of Jonas at issue (shown above) to be indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman. Thus, the Court concluded that the graphical representation of Jonas was not a portrait of Lohan.

Practical Takeaways: This case demonstrates that the right of publicity varies from state to state, and in this case, a jurisdiction that takes a relatively narrower approach to the right of publicity. Although many other states protect a person’s “likeness,” the New York statute does not list a person’s likeness as a protected attribute, so Lohan had to rely on the theory that the Jonas constituted her “portrait.” Further, the New York statute focuses on whether the person is capable of being identified from the advertisements alone. As a result, the court focused solely on the graphic image of Jonas, without regard to the plot and dialogue related to the Jonas character in GTA V.

A copy of the decision in Lohan v. Take-Two Interactive Software, Inc.

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, 31 N.Y.3d 111 (2018) is located here.

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