Lindsay Lohan just caught a break in her seemingly destined-to-fail lawsuit against Take-Two Interactive Software Inc., the makers of "Grand Theft Auto." The actress filed a right of publicity suit in the Supreme Court of the State of New York in July 2014, only to have the court hand her an initial loss. The decision was then affirmed in September 2016 by a five-judge panel for the New York Appellate Division of the Supreme Court, dismissing the lawsuit in which Lohan accused Take-Two of using her likeness for a character in its "Grand Theft Auto V" game without her authorization.
According to Lohan’s complaint, the cover of the fifth iteration of the hot-selling video game depicts a bikini-clad woman that bears a striking resemblance to herself, and the game consists of more alleged 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.”
In a hearing before the Appellate Division of the Supreme Court this past September, the panel of judges held that Take-Two did not use Lohan's "name, portrait or picture" in the game and as a result, found that the company did not violate her right of publicity. The court further held that even if the character does, in fact, resemble Lohan, "Grand Theft Auto V [is] protected as a work of fiction and satire,” and thereby, shielded from right of publicity claims.
According to the court, "Lohan's cause of action under Civil Rights Law § 51 must fail because defendants did not use [Lohan's'] name, portrait, or picture." It continued on to note: "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."
For the uninitiated, New York state Right of Publicity laws provide protection for a person's "name, portrait, picture, and voice." To constitute a violation of such laws (namely Sections 50 and 51 of the statute), the use of a person's identity must be: "within New York state; for advertising or trade purposes; and without written consent."
Well, not all is lost for Lohan. As of this week, New York State’s highest court - the Court of Appeals - granted Lohan's appeal, along with a similar appeal lodged by "Mob Wives" television star Karen Graven. The high court will be tasked with deciding whether or not the Appellate Division of the Supreme Court correctly found that the game is a work of fiction and satire, and its owners are, therefore, protected from Right of Publicity claims under the First Amendment.