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| Photo: Rockstar Games |
Lindsay Lohan has lost her
latest appeal[1] against Take Two Interactive Software Inc., parent company of Rockstar Games - developers of Grand Theft Auto V (GTAV). This long battle dates as far back as 2014 when Lohan sued
Rockstar in Manhattan, followed by an appeal when the case was thrown out of
court. The actress contended that her likeness was incorporated into the game
and its adverts without her consent and attributed to a game character called "Lacey Jonas" who allegedly looked and sounded like her. See a post related
to the previous case here.
The Latest ruling by the
New York Court of Appeal on March 29, 2018, was unanimous. The court
found that the “artistic renderings are indistinct, satirical
representations of the style, look, and persona of a modern, beach-going young
woman that is not reasonably identifiable as plaintiff.” In
reaching its decision, the court reviewed the dispute in the case and concluded
that an animated depiction in a computer game can amount to a
"portrait" as construed under New York's Statute on Publicity Rights.
Nevertheless, upon applying this finding to the present case, the court decided
that the character "Lacey Jonas" did not constitute a
"portrait" of Lindsay Lohan.
According to the Court; "the Jonas character simply
is not recognizable as plaintiff inasmuch as it merely is a generic artistic
depiction of a 'twenty something' woman without any particular identifying
physical characteristics. The analysis with respect to the Beach Weather and
Stop and Frisk illustrations is the same. Those artistic renderings are
indistinct, satirical representations of the style, look, and persona of a
modern, beach-going young woman. It is undisputed that defendants did not refer
to plaintiff in GTA V, did not use her name in GTA V, and did not use
a photograph of her in that game. Moreover, the ambiguous representations
in question are nothing more than cultural comment that is not
recognizable as plaintiff and therefore is not actionable under Civil Rights
Law Article 5"[2].
It's quite interesting that the case has gone
this far, especially because there is no use of the actual photograph or name
of the actress. Even without the preexisting contention, an ordinary man may
not determine a connection between "Lacey Jonas" and Lohan because of
the similarity of the personality of the character to the stereotype of most
young divas. Lohan has also previously unsuccessfully contested the mention of her
name in Pitbull's song- Give me Everything Tonight with the
lyric "I got it locked up like Lindsay Lohan". However, she
was successful in securing a settlement for the mention of "milkaholic
Lindsay" in a 2010
Super Bowl E-trade Commercial.
While one must applaud Lohan for
being persistent in protecting her name and image, one must also insist on a
limit to prevent a floodgate of litigation in cases of computer generated or other images deemed to look or sound like every celebrity. If there is no significant
or clearly ascertainable similarity or any incorporation of an actual image, is
it justifiable to rule in favour of an aggrieved party in publicity rights
cases? The courts can help by affirming a clear threshold that must be reached
before an animated depiction or similar portrayal can constitute a
"portrait" in such cases.
We have previously distinguished Lohan's
case from Gwen Stefani and No doubt's case here; the latter being
successful due to the California State
Appeals Court's determination that Activision's Band Hero game and the ability of users to
unlock special features to manipulate the digital avatars of the No
Doubt band members were not sufficiently transformative as they
were "exact depictions of No Doubt's members doing exactly what they do
as celebrities".
In contrast, the California
Court of Appeal has reached a final decision in de Havilland v Feud, where
renowned actress, Olivia de Havilland, contested her portrayal in the television
docudrama- "Feud" produced by Ryan Murphy, without her consent. The
court overturned the trial court's finding that this realistic portrayal was
not "transformative" enough and that no defense under the First
Amendment could be maintained against Havilland's right of publicity claim
under California Law. The appellate court held that the portrayal, which
includes interview appearances, was in fact "transformative" and that
the right of publicity "could not be used to control a celebrity’s
image by censoring disagreeable portrayals consistent with First Amendment and
free speech considerations."- via the TCMA.
Additionally, her claim for
damages from her alleged portrayal (as a gossip who uses abusive language) was
not upheld since she had given similar interviews over the years. Though there
may still be a further appeal, the finding helps to further draw a line in the
increasingly popular cases of publicity rights claims.
Unfortunately, plaintiffs
may continue to feel dissatisfied with the recent outcomes of publicity right
cases based on the belief that their likeness is being exploited for commercial
purposes. Lohan and others may remain resolute on defending their rights, but
continuous appeals in cases where the depiction in question is not clearly
similar to the image or likeness of the plaintiffs only seem to promote the
contentious material even more and make more profits for the
defendants. For instance, "More than 275 million copies of the Grand
Theft Auto video game have been sold since its launch in September 2013"
and it "topped the UK games sales charts for the 15th time earlier this
month"- via BBC News. Meanwhile, Lohan's career doesn't
seem to have experienced a similar rise. It would be interesting to see how
future cases in this area unfold and how more rulings influence the legal
regime in other countries.
[1] Lohan v
Take-Two Interactive Software, Inc., 2018 NY Slip Op 02208, 2018 WL
1524714 (N.Y. App. Ct. March 29, 2018)
[2]
Per Judge Eugene Fahey
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