Lindsay Lohan and 'Mob Wives' star Karen Gravano lose Grand Theft Auto video game lawsuit

|The Volokh Conspiracy |

Actress Lindsay Lohan. (Tim P. Whitby/Getty Images)

In today's New York appellate decision in Gravano v. Take Two Interactive Software, Inc., Lindsay Lohan and "Mob Wives" star Karen Gravano lost a lawsuit in which they claimed that Grand Theft Auto V had misappropriated their images. Many states recognize a so-called "right of publicity" under which people can sue if their names, likeness or other identity attributes are used in certain products. The rules vary from state to state, though, and are also constrained by the First Amendment. Generally speaking, in most states using someone's name or likeness in advertising can lead to a lawsuit. Using it in news reporting, documentaries, fiction and the like is protected by the First Amendment. And when the use is in contexts such as video games, T-shirts and such, different states and different courts do things differently.

New York, in particular, has a relatively narrow right of publicity statute. First, it only applies to "name, portrait, or picture," and not to the use of a person's familiar attributes that falls short of that. (Contrast with this the California right of publicity, which the Ninth Circuit federal appeals court held bars the use of a robot that wore hair and jewelry reminiscent of Vanna White and was posed in front of a "Wheel of Fortune"-like game board.)

Gravano alleges that in one of the optional random events in the video game, the character Andrea Bottino is introduced, and that her image, portrait, voice, and likeness are incorporated in this character. Specifically, Gravano argues that the character uses the same phrases she uses; that the character's father mirrors Gravano's own father; that the character's story about moving out west to safe houses mirrors Gravano's fear of being ripped out of her former life and being sent to Nebraska; that the character's story about dealing with the character's father cooperating with the state government is the same as Gravano dealing with the repercussions of her father's cooperation; and that the character's father not letting the character do a reality show is the same as Gravano's father publicly decrying her doing a reality show.

Lohan alleges that defendants used a look-alike model to evoke Lohan's persona and image. Further, Lohan argues that defendants purposefully used Lohan's bikini, shoulder-length blonde hair, jewelry, cell phone, and "signature peace sign pose" in one image, and used Lohan's likeness in another image by appropriating facial features, body type, physical appearance, hair, hat, sunglasses, jean shorts, and loose white top. Finally, Lohan argues that defendants used her portraits and voice impersonation in a character that is introduced to the player in a "side mission."

Both Gravano's and Lohan's respective causes of action under Civil Rights Law § 51 "must fail because defendants did not use [plaintiffs'] name, portrait, or picture" (see Costanza v Seinfeld [yes, that Seinfeld -EV], 279 AD2d 255, 255 [1st Dept 2001]). Despite Gravano's contention that the video game depicts her, defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her. 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.

Second, the New York right of publicity applies only to advertising products, and not to the use in entertainment (however commercially lucrative the entertainment might be):

Even if we accept plaintiffs' contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs' claims should be dismissed because this video game does not fall under the statutory definitions of "advertising" or "trade" (see Costanza [stating that "works of fiction and satire do not fall within the narrow scope of the statutory phrases advertising' and trade'"]). This video game's unique story, characters, dialogue, and environment, combined with the player's ability to choose how to proceed in the game, render it a work of fiction and satire.

Third, and relatedly, the court treats the video game as protected by the First Amendment, including against the right of publicity claim here:

See generally Brown v Entertainment Merchants Assn. [that's the case that held that even distribution of violent video games to children is protected-EV], 564 US 786, 790 [2011] ["(l)ike the protected books, plays, and movies that preceded them, video games communicate ideas …" and deserve First Amendment protection]).

Quite a different result—and a better one, from a First Amendment perspective—than the video game decisions handed down recently by the Ninth Circuit. For more on the disagreement among courts on the First Amendment/right of publicity question, in video game cases and beyond, see this post and the brief to which it links.

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