Lindsay Lohan, Grand Theft Auto V, the First Amendment, and the Right of Publicity

An amicus brief we recently filed in an interesting and important New York high court case.

[Lindsay Lohan attends DailyMail.com & DailyMailTV Holiday Party with Flo Rida on December 6, 2017 at The Magic Hour in New York City. (Photo by Steven Ferdman/SIPA USA)]

The popular Grand Theft Auto V computer game has two characters allegedly based on Lindsay Lohan and on Karen Gravano (Mob Wives). Lohan and Gravano sued the game company (Take Two Interactive Software), claiming that this violated what is generally called their "right of publicity" (but "right of privacy" in New York). That right is often labeled the exclusive right to control the use of one's name, likeness, and other attributes of identity for commercial purposes—but that shorthand can't be entirely accurate, since that would ban a wide range of First-Amendment-protected speech, such as unauthorized biographies and even newspaper articles about people (since movie, books, and newspapers are generally commercial ventures).

The New York intermediate appellate court rejected the claim, based on New York precedents that have narrowly read the relevant New York statute; the New York high court then agreed to consider the matter for itself. Shortly before Christmas, my Scott & Cyan Banister First Amendment Clinic students—Alexandra Gianelli and Tracy Yao—and I, with the indispensable and generous help of our local counsel, Daniel Schmutter (Hartman & Winnicki LLP), filed an amicus brief supporting the narrow view of the right of publicity, and a broad view of free speech protections. (The brief was on behalf of fourteen law professors who are knowledgeable on First Amendment law and intellectual property law, Profs. Eric M. Freedman, Brian L. Frye, Jon M. Garon, Jim Gibson, Eric Goldman, Stacey Lantagne, Mark A. Lemley, Raizel Liebler, Barry McDonald, Tyler Ochoa, Aaron Perzanowski, Betsy Rosenblatt, Rebecca Tushnet, and David Welkowitz.) Here's a quick summary of the case, from the intermediate appellate court decision:

[E]ach plaintiff alleges that defendants violated her right to privacy under New York Civil Rights Law § 51 by misappropriating her likeness for use in the video game "Grand Theft Auto V." This video game takes place in the fictional city "Los Santos," which itself is in a fictional American state of "San Andreas." Players control one of several main characters at various points in the game, engaging in approximately 80 main story missions as well as many optional random events. Plaintiffs allege that during certain optional random events, the player encounters characters that are depictions of plaintiffs.

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."

Here is the Summary of Argument from our brief, though you can read the entire brief here:

Using characters based on real people in works of fiction is a longstanding practice protected by the First Amendment. Creators often try to make their works true to life, and a large component of that life is celebrities. That has been done in a vast range of works, such as Brave New World, Forrest Gump, Midnight in Paris, and Seinfeld. The creators of video games, which are as protected by the First Amendment as are books and films, must have the same right.

When the state legislature enacted § 51 of the New York Civil Rights Law, it did not intend to restrict this commonly used artistic technique. Section 51 of the New York Civil Rights Law provides a limited right of privacy that prohibits the nonconsensual use of a person's voice, picture, name, or portrait for "advertising" or "trade" purposes. And New York courts have generally narrowly construed the statute as applying only to commercial advertising, to avoid conflicts with the First Amend­ment.

Because videogames are constitutionally protected creative works, like books and movies, the right of privacy statute does not apply to them, or to advertisements for them. Thus, Gravano's and Lohan's claims that Take-Two impermissibly used their likeness in Grand Theft Auto V, or in material promoting Grand Theft Auto V, must fail. (We accept for purposes of our argument the plaintiffs' assertion that the characters were indeed deliberately based on Lohan and Gravano—though they appeared under other names—and that viewers would recognize them as such. Of course, if that assertion is incorrect, that is even more reason to reject liability in this case.)

And this historical limitation on the right of privacy has helped New York avoid the problems faced by other jurisdictions, which have interpreted the right of privacy more broadly—and, as a result, inconsistently, unpredictably, and with unacceptable subjectivity. Different courts applying rival tests have reached widely varying results on virtually identical facts. And both the predominate purpose test (urged by Gravano) and the transformative use test (urged by Lohan) have proved vague, too speech-restrictive, and open to discrimination in favor of what judges view as "high art" and against what they view as "low art." This court should continue reading the right of privacy as limited to commercial advertising, and thus affirm the judgment below.

And here's Part I, which argues that authors have long based characters on real people, and have a constitutional right to do so:

Creators have long worked real famous people into their fictional stories, and they have a First Amendment right to do so. "Fiction writers may be able to more persuasively, more accurately express themselves by weaving into the tale persons or events familiar to their readers…. No author should be forced into creating mythological worlds or characters wholly divorced from reality…. Surely, the range of free expression would be meaningfully reduced if prominent persons in the present and recent past were forbidden topics for the imaginations of authors of fiction." (Guglielmi v Spelling-Goldberg Productions, 25 Cal 3d 860, 869, 603 P2d 454, 460 [1979] (Bird, C.J., concurring) (concurrence endorsed by four of seven Justices).)

Thus, for instance, the creators of Seinfeld often introduced storylines where the main characters interacted with New York cultural icons to make the show's New York setting more realistic. The character "George Steinbrenner" repeatedly appears as George's boss; in one episode, Steinbrenner asks George to go to Cuba to recruit some of the country's best baseball players. In other episodes, "John F. Kennedy, Jr." meets Elaine at a fitness club and almost goes on a date with her, and "Calvin Klein" asks Kramer to model underwear for him. Similarly, the Tony-Award-winning musical Avenue Q includes Gary Coleman, the 1980s child actor, as a character. (All these characters were played by actors, not by themselves.)

Likewise, Aldous Huxley used Henry Ford's name as a deity-like reference in his 1931 novel Brave New World. The fictional society in that book reveres Ford as its creator: They celebrate Ford's Day and use his name in swearing (e.g., "Oh, for Ford's sake!"). When the book was published, Ford was a celebrity famous for revolutionizing mass production; in the late 1920s, he even tried to build his own utopian city, Fordlândia. By invoking Ford's name, Huxley instantly conveyed to his readers the principles underlying his fictional world—efficiency, mass production, and consumerism.

Similarly, in one scene in Forrest Gump (Paramount Pictures 1994), Elvis Presley watches as Forrest begins dancing unusually because of his leg braces, and this ends up being the inspiration for Presley's signature gyrating dance moves. In other scenes, Forrest gets the Medal of Honor from Lyndon B. Johnson, and meets Richard Nixon and uncovers the Watergate scandal. [Footnote: Though New York does not recognize a post-mortem right of privacy, many other states do….]

In Midnight in Paris (Sony Pictures Classics 2011), the hero is an aspiring novelist who is transported to 1920s Paris, where he meets Zelda Fitzgerald, Ernest Hemingway, Pablo Picasso, and Salvador Dalí. These characters make the setting more realistic, and also advance the plot as they offer the hero advice and help him finish his novel.

The creators of the HBO show Silicon Valley similarly based a quirky character on Silicon Valley mogul Peter Thiel, co-founder of Paypal. Both the character and Thiel started fellowships to support young geniuses to leave school and start businesses; both built islands; and both are said to have similar speech patterns and personalities. The show also often mentions Mark Zuckerberg and other tech industry leaders to bring the culture of the modern computer business to life.

It is possible that the creators of some of these works could have gotten licenses from the people to whom they were referring—or, what could be more difficult, from those people's scattered heirs. But they should not have to, and do not have to, get such permission (which in any event may be unavailable if the portrayal is not entirely flattering, or if the work is likely to prove controversial). Unauthorized biographies are as constitutionally protected as the authorized ones; likewise for unauthorized references to celebrities within broader works.

This case appears to involve the same literary trope as in the works discussed above: A video game set in contemporary Los Angeles may include characters based on actual celebrities—Karen Gravano, a mob boss's daughter turned reality television star, and Lindsay Lohan, a child actress whom many grew up with—to realistically evoke Los Angeles celebrity culture. These artistic choices shape the message that creators are trying to convey, and broadly construing the right of privacy would unduly limit First Amendment expression.

As courts have repeatedly recognized, the First Amendment must protect the right of creators to incorporate celebrity images in their creative works—and thus must protect Take-Two's right to create a vivid, realistic portrayal of Los Angeles celebrity culture:

[*] "Because celebrities are an important part of our public vocabulary," "[r]estricting the use of celebrity identities restricts the communication of ideas" (Cardtoons, L.C. v Major League Baseball Players Assn, 95 F3d 959, 972 [10th Cir 1996] (upholding the right to use celebrity baseball player images in parody trading cards)).

[*] Celebrities "are widely used—far more than are institutionally anchored elites—to symbolize individual aspirations, group identities, and cultural values. Their images are thus important expressive and communicative resources: the peculiar, yet familiar idiom in which we conduct a fair portion of our cultural business and everyday conversation." (ETW Corp. v Jireh Pub., Inc., 332 F3d 915, 935 [6th Cir 2003] (upholding the right to use Tiger Woods' image in prints).)

[*] "Because celebrities take on public meaning, the appropriation of their likenesses may have important uses in uninhibited debate on public issues, particularly debates about culture and values. And because celebrities take on personal meanings to many individuals in the society, the creative appropriation of celebrity images can be an important avenue of individual expression." (Comedy III Productions, Inc. v Gary Saderup, Inc., 25 Cal 4th 387, 397, 21 P3d 797, 803 [2001].)

The right of publicity thus "has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are iconoclastic, irreverent, or otherwise attempt to redefine the celebrity's meaning" (id.). And this Court should avoid this consequence by narrowly construing the right of privacy statute in a way that leaves creators free to build characters based on celebrities.

Later parts argue that

• video games are as protected by the First Amendment as other expressive works,
• New York state cases have largely (with some exceptions not relevant here) read the relevant state statute as limited to commercial advertising,
• New York cases have read the statute as limited to explicit use of a person's name or likeness, and
• the court should continue to narrowly construe the statute to avoid First Amendment problems—problems that have amply manifested themselves in those jurisdictions that have used less speech-protective tests for the right of publicity.