Months ago, there were rumors that Lindsay Lohan was planning to sue Take-Two Interactive Software and Rockstar Games over Grand Theft Auto V, because the game features a character that the starlet alleges is based on her. According to the suit, the cover of the game depicts a bikini-clad woman that bears a striking resemblance to LiLo. And the game, itself, apparently includes more similarities, including the fact that the character runs from paparazzi, takes cover in the Chateau Marmont, and incorporates Lohan’s “image, likeness, clothing, outfits, [Lohan’s] clothing line products, ensemble in the form of hats, hair style, sunglasses, jean shorts.” Lohan is not the only blonde who has posed in a bikini while giving he peace sign, she’s not the only star that find comfort at the Chateau Marmont, and she’s certainly not the only celeb to run from paparazzi. But does she have a case?
Let’s start with the laws that form the basis of her lawsuit. Lohan and company are claiming that her publicity rights were violated because her likeness was used without her consent. Right of publicity laws vary from state to state, and since the suit was filed in the Supreme Court of the State of New York, we’ll start by in New York. NY’s right of publicity law is codified as part of a statute with two sections – Section 50 and Section 51 – being primarily relied on in right of publicity suits.
As is pretty typical, Lohan sued with reference to both sections. Section 50 is much shorter than Section 51, basically just defining a right of publicity violation as a misdemeanor. Section 51, on the other hand, provides protection for a person's name, portrait, picture, and voice. To constitute a violation of Section 51, a use of a person's identity must be: within New York state; for advertising or trade purposes; and without written consent. As evidenced by the lawsuit, there was no permission, and there’s really no denying that the alleged use of her likeness is for trade purposes. So, at first blush, her suit looks pretty promising.
But a victory for Lohan might not be that simple. Gaming companies that are sued related to the right of publicity often claim First Amendment protection in the use in question. And courts apply what’s called the transformative test to determine whether or not a company’s First Amendment rights trump a right of publicity. Several courts have found that a defendant can raise the affirmative defense that the First Amendment protects a work when said work contains “significant transformative elements.”
In Kirby v. Sega of America, Inc., the Court of Appeal of California for the Second District said this of the transformative test: “The inquiry is whether the celebrity likeness is one of the `raw materials' from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question." The court went on the say, “If the product containing the celebrity's likeness is so transformed that it has become primarily the defendant's own expression of what he or she is trying to create or portray, rather than the celebrity's likeness, it is protected.” In other words: is a celebrity’s likeness a mere depiction of the celebrity or is it transformed enough that the value of the character does not derive primarily from the celebrity’s fame?
In the Kirby case, singer Keirin Kirby sued Sega, claiming the company was distributing a game with a character name “Ulala” that looked and dressed very similar to her. The videogame character also apparently used Kirby’s “signature lyrical expression, ‘ooh la la.’” The court did note that there were similarities between Kirby and the character in the game, however, significant differences, related primarily to the appearance of the character in the game, were enough to satisfy the transformative test.
By contrast, in No Doubt v. Activision Publishing, Co., the Court of Appeal of California for the Second District found that Band Hero’s use of avatars that looked like the No Doubt band members was not transformative. Activision argued its “use of No Doubt’s likenesses in Band Hero is transformative because the videogame shows the No Doubt avatars ‘surrounded by unique, creative elements, including in fanciful venues such as outer space . . . and performing songs that No Doubt avowedly would never perform in real life.’” The court, however, said that the graphics and other elements in the background were not enough to transform the avatars into anything other than “literal recreations of the band members."
So with Lohan’s case, the million dollar question is whether the character is simply a recreation of her or, despite some similarities, are there enough differences to merit First Amendment protection? We personally don’t see the character as a dead ringer for Lohan. Maybe there are similarities and maybe the character is based, in part, of LiLo, but that’s not necessarily enough to satisfy the transformative test. Lohan’s camp essentially has to show that the character in the game emulates her, which we don’t see as an easy argument.
JENNIFER WILLIAMS is a recent law school graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. She is currently awaiting admission to the NY State Bar. For more from Jennifer, follow her on Twitter.