On Wednesday July 2, 2014 Lindsay Lohan turned 28 years old and also decided to bring up a legal suit against the creators of Grand Theft Auto Five (GTA V) in New York City over her right to publicity. The actress is claiming that Take-Two Interactive and their subsidiary Rockstar, both of which are based in New York City, have taken her likeness and used it for commercial purposes. The lawsuit alleges that the GTA V makers look the voice, image, clothing and style of Lohan and used it without her prior consent. As further evidence the actress says that the home the character in question, Lacey Jonas, stays at in the game, is extremely similar to West Hollywood’s famous Chateau Marmont hotel where Lindsay once stayed, and allegedly ran up an unpaid bill of $46,000.
The defense that Lohan will be using is her right to publicity, which is defined in Black’s Law Dictionary as “the right if an individual, especially a celebrity, to control the commercial value and exploitation of their name or picture or likeness or to prevent other from unfairly appropriating that value for their own commercial benefit.” In times past celebrities would claim emotional harm or mental distress in a privacy claim, but judges began to rarely side with the famous persons, because they often craved and sought out attention. Instead celebrities would seek out a publicity claim saying that they were deprived of the financial gain reaped from that publication. Within three days of its release GTA V sold more than $1 billion in sales, and Lohan feels she deserves some of that money because her likeness was stolen.
There are three different categories that could be used as justification in a publicity claim. First there is the Moral argument, second the economic concerns and third the public interest concerns. There are two aspects to the moral argument, the unjust enrichment argument and the “labor desserts.” The unjust enrichment argument focuses on the strangers reaping of benefits when they have not earned them. This argument would not help Lohan because the Grand Theft Auto franchise is one of the most well known video games franchises in the history of video games, and they do not need to steal her likeness in order to do well. The labor desserts side is a bit more open to interpretation, saying that the plaintiff should be entitled to gain the rewards of their career’s endeavors.
The economic argument highlights the need to protect the economic value of a celebrity’s identity to stimulate creativity. In effect, if the law did not give protection for celebrities to continue making works, then the motivation to create would be gone because their was no financial incentives. It encourages people to become successful by guaranteeing them others will not use their persona without prior permission. The third argument of public interest is centered on consumer protection. The courts do not want common people to assume a celebrity is endorsing a product without their consent. Without this there could be some very deceptive advertising practices exploiting the images of celebrities.
In New York City laws are similar to the general overview above, but are also different in their more narrow interpretation. The publicity right claim an individual can pursue in New York City is greatly limited because the claim is rooted within a right of privacy statue. That statue is in The New York Civil Rights Law sections 50 and 51, and are the corner stone of publicity law on which Lindsay Lohan will bring her legal case against the creators of GTA V. Section 50 states that a person, firm or corporation that used advertising purposes, or for purposes of trade, the name, portrait or picture of any living person without prior consent is guilty of a criminal penalty. Section 51 goes on to give the victim of such appropriation the right to obtain an injunction and bring a cause of action to obtain compensatory and exemplary damages, meaning that Lindsay could get money out of her image allegedly being used without her knowledge.
So there are three things that Lohan must claim in order to win the case. First that GTA 5 used her name, portrait, picture or voice. Second that is was for the purpose of trade, and third that it was without her consent. The last two are obviously true. The hardest part will be determining to what extent her likeness was portrayed. New York City law keeps a much stricter interpretation of a celebrity’s likeness than other jurisdictions around the country. Some federal courts have found likeness to include aspects of personality like a persons dress, mannerisms and hairstyles. In New York those claims do not matter.
Certain limitations are placed on an individual’s right to publicity in order to address peoples First Amendment concerns of freedom of speech. In New York there are two important exceptions, newsworthiness and necessary commercial use. To keep the rulings from being overly broad the New York courts have added two further limitations, which are that the persona is immediately recognizable and an exception for incidental use.
The newsworthiness exception allows news stations to use a person’s likeness for informational or communicative purposes, thus allowing the news to delivered daily without celebrities suing every news station that is sharing a story that may paint them in a poor light. The second clause is the need for commercial use. Therefore an educational journal or artwork could use a person’s likeness as an exemption for a legitimate matter of public interest.
New York’s third clause is arguably the most important to Lindsay Lohan’s legal rights of publicity in the GTA V case. There is a requirement that the reference to the person asserting the claim be clear in the appropriation. Thus hinges the main crux of the argument. Is Lacey Jonas from Grand Theft Auto Five recognizable as Lindsay Lohan, or does she just look like thousands of other blonds in bikinis who are standing on the beach taking a selfie and giving the peace sign? If there were images that were similar like the one above, then Rockstar could claim incidental use, as the actress is not always walking around like that and she has not made her fame by that specific persona.
The character Lacey Jonas is frequently hunted by the paparazzi and is often wearing hip and fashionable clothes that are similar to Lohan’s in the game, but the actual actress that posed for the game and was contacted by Rockstar, was model Shelby Welinder. If this case was perhaps brought up in another state, New Jersey or California, where there is more protection for celebrities and less for corporations, then Lindsay may have a shot at winning the legal battle. But in New York City where the legal rights of publicity are so confined, Lindsay Lohan has little shot at winning in the GTA V case of alleged use of her likeness without prior consent.
By B. Taylor Rash