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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)

[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.

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  • BillyG||

    I agree GTA 5's use of their likenesses is protected by the first amendment. Should NY rule otherwise, I think Saturday Night Live would have to curtail the use of individuals likenesses in their skits. (As one example of what a contrary ruling would mean.)

  • Quixote||

    If using these individuals' likenesses damages their reputations, why should it be "protected by the First Amendment"? Oh, I forgot, the "damage to reputation" criterion introduced in New York's leading criminal "parody" case (see documentation at https://raphaelgolbtrial.wordpress.com/) was a special standard designed to protect the reputations of certain members of the academic community, not famous actors. At any rate, it's unlikely that decision will be applied here, because most of the members of the court that decided it are no longer on the bench (including, in fact, the author of the opinion herself, who tragically took her own life last year). But let's not skirt around the issue: why should an expressive act of "impersonation" be criminalized, but the use of an individual's "likeness" that damages a reputation not be protected?

  • Quixote||

    P.s. I misspoke, of course, at the end of my comment above: why should the one be criminalized, and the other be protected?

  • MDJ23||

    Aren't the Madden NFL cases relevant?

  • Eugene Volokh||

    Yes, I discuss the sports game cases in Part V of the brief.

  • MDJ23||

    Thanks. I saw that when I clicked on the link to the full brief. Interesting issue. It seems odd to me that a gaming company should be able to use athletes' likenesses to promote a video game of that sport. I can't tell from your brief whether you think such use should be protected by the First Amendment. (I believe the professional sports leagues now receive compensation for current players through a licensing agreement?)

  • damikesc||

    Having played the game, the characters are hardly based on those people. They are clear stereotypes of that "type" of person, but nothing made me say "Hey, that's like Lindsay Lohan". If their entire persona is comparable to a stereotype, that is a problem, but it is not Rockstar's problem.

  • MDJ23||

    The argument here appears to concede that the characters were based on their likenesses.

  • Eugene Volokh||

    Indeed, though in the sense of just assuming for the sake of argument -- even if the characters were based on Lohan and Gravano, that still shouldn't be an infringement of the right of publicity.

  • MDJ23||

    I concede that "assume" would have been a better word choice.

  • swood1000||

    Indeed, though in the sense of just assuming for the sake of argument -- even if the characters were based on Lohan and Gravano, that still shouldn't be an infringement of the right of publicity.

    Does that mean that a video or board game should be permitted to use, without permission, a swimsuit photo of an actress as their main background? For example, that 1976 one of Farrah Fawcet?

  • tommyboy||

    A better analogy would be using a similar picture of another model that looks like Farrah Fawcet. They did not use existing art of Lohan or Gravano, they created their own art that had the same traits as the aforementioned celebri-titties.

  • swood1000||

    So is the issue just copyright? Can I use an image of Farah Fawcet as the background of my video game as long as I take the picture myself, by following her to a beach?

  • nonzenze||

    With the permissions of the copyright holder of the photograph?

  • swood1000||

    With the permissions of the copyright holder of the photograph?

    Is the issue only one of copyright? If I can take an appealing picture of Farah Fawcet sitting on the beach I can use that as the background for my video game? Or I can draw an enticing swimsuit image of Farah Fawcet and use that, as long as it did not resemble an existing copyrighted photo?

  • Chris_Virginia||

    I didn't see a concession, just an acknowledgement of the plaintiff's position for purposes of argument.

  • CE||

    I recognized Lohan right away. I have no idea who Gravano is.

  • Bored Lawyer||

    There is a good Second Circuit case named Rogers v. Grimaldi that similarly applies a narrow formulation to Lanham Act claims where the use of the name (or here likeness) is involved in artistic expression. Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989)

    In order to balance First Amendment interests against trademark interests, the Second Circuit created a rule that use of a mark (or a name) is not actionable "unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work."

    Later cases expanded that from title to use of names and likenesses in movies and video games.

  • Stephen Lathrop||

    Interesting point. It raises the question whether anything presented by a video game can have artistic relevance. I have previously argued that almost all photography is inherently artistic, because it is almost always the product of expressive choices made by the photographer. I have also conceded that taking the expressive choices out of photography, as in the case of security camera images created by deterministic processes, takes the art out of the pictures, as it were.

    Just so with video games. Everything which happens is deterministically delivered by software. Even if some Warhol-esque figure appears to suggest that the choice to do that encompasses art, the process itself remains resolutely un-artistic, like a security camera. I suggest that classing video games as either art or free expression for the purpose of 1A protection would be a mistake—a mistake which would degrade both categories to the detriment of freedom.

    In saying that, I am not suggesting video game producers should not be free to market their wares, or should suffer more regulation. I am suggesting that some method other than inappropriate resort to the 1st Amendment ought to be found to protect them.

  • gormadoc||

    Common practice fugues are very deterministic and prescriptive, but most individuals would regard them to be art. I don't see any inherent dissonance between determinism and expression. The reason security cameras do not produce art is because they do not intend to produce art. If someone had installed a security camera with the intent to produce art (similar to many early movies), then I would consider their products art. Similarly, I have no problem considering that video game designers create art.

    Drawing the line instead at the software producing the video game is odd, as all digital movies are produced in the same manner as video games now, with writers and artists working together under the auspices of directors, with everything compiled into one work by software. This process is deterministic but it does not degrade the art. I'd bet that Pixar movies take more computer-hours than man-hours, in fact.

    While I don't like visual novels, they differ from normal novels only in the sense that they are visual and require human input. I don't see why the determinations of what scene comes next make it not-art when it's a machine delivering a writer's decision versus a book (and how we read linearly) delivering a writer's decision. Would Choose Your Own Adventures count as art or not art? What if they were digitized?

    This all assumes that video games are actually deterministic; most are not. Randomness is used in a variety of genres.

  • gormadoc||

    Damn character limit.

    For a piece of art that is extremely deterministic, consider 4'33". Everything is determined from before the beginning, at the performance instruction. While it may be bad art, it is still art.

    It seems strange that you focus on the production side of art rather than the perception side. There are countless ways people produce art and I don't see the methods as important to the concept of art. But all art (perhaps not the extreme avant-garde) has a common thread: to provide an experience. It seems a more fruitful task to examine the concept of art from the perception side, which could include the production but I don't think has to be defined by the production.

    Note that if you don't like video games and that influences you to consider it not art, you could just take the stance that it is bad art. I certainly do that with art-forms I dislike.

  • jph12||

    "Everything which happens is deterministically delivered by software."

    Yup. Making new video games is easy. There's totally no creativity or art involved. Simply turn on your video game making machine and, 17 minutes later, out pops a whole new video game. If you are lucky, it will be a sequel to one of the successful franchises that you have rights too.

  • Bored Lawyer||

    "Just so with video games. Everything which happens is deterministically delivered by software."

    Not so. There is significant artistic work in the characters and scenery, including their appearance and qualities. That is what is protected, even if the interplay of characters during any one game is not.

  • BestUsedCarSales||

    It's interesting because when talking about video games he made shift from producer to perceiver in defining art. For photography, he states that the choices of the photographer necessarily lead to art. For video games, the lack of interaction on the consumer's side makes it not art.

    Even if we concede for the sake of argument that the consumer side is deterministic:
    1) This shifts the reason why it is art in both arguments. This does not necessarily mean either observation is without merit, just that it is a non-sequitor for his specific argument.
    2) If the consumer is important and the result musn't be deterministic to be art, then his example of photography can no longer be considered art.

  • David Nieporent||

    Just so with video games. Everything which happens is deterministically delivered by software. Even if some Warhol-esque figure appears to suggest that the choice to do that encompasses art, the process itself remains resolutely un-artistic, like a security camera. I suggest that classing video games as either art or free expression for the purpose of 1A protection would be a mistake—a mistake which would degrade both categories to the detriment of freedom.

    You have completely confused the issue of the first amendment with the issue of copyright. (And, as always, your understanding of both are wrong. Video games are already protected under the first amendment; see Brown v. Entertainment Merchants Association.)

  • Stephen Lathrop||

    DMN, I am not a lawyer. My commentary often attempts to be relevant to legal analysis, or at least to legal policy, but it never attempts to be legal analysis. You are the one who is confused, as shown by the fact that you constantly complain that I haven't provided legal analysis, when doing that serves only to the evade the points I actually make. Perhaps your confusion is partly my fault. Hope this clears it up.

  • David Nieporent||

    That's evasion. You were discussing the effects of the application of the 1A to video games, which is a legal question, and it requires an understanding of what the 1A says and what it does. And yet you were discussing doctrines unrelated to the 1A, but only to copyright. And you were discussing it as though there were a question of whether we should protect video games under the 1A, when in fact they already are.

  • nonzenze||

    Stephen, over in a nearby sculpture garden, I'm sure you can find a kinetic sculpture whose mechanical movements are purely deterministic. The artistic component that deserves 1A protection comes not in the execution, but in the choices made in writing the code that determines when and how the sculpture moves. That activity is surely not deterministic.

  • Vandalia||

    If the opinion is correct and NY's construction of the "right to publicity" is more narrow than other jurisdictions, then you have to wonder why they chose to file the suit in New York.

  • Bored Lawyer||

    Since you mention it, the NY Court of Appeals (its highest court) ruled that for choice-of-law purposes, the domicile of the person asserting the right of publicity is the state whose law applies. Meaning, that if Lindsay Lohan is a NY resident, then its laws apply to her claim. If she is a resident of another state, then its laws apply.

    Does anyone know where she, in fact, is domiciled? Has this issue come up in the case?

  • Eugene Volokh||

    Bored Lawyer is right that the choice-of-law rule turns on Lohan's and Gravano's domicile; and in Lohan v. Perez [Pitbull] (S.D.N.Y. 2013), another right of publicity case filed by Lohan, she said she was a New York citizen -- I assume that's why there seems to be no dispute that New York law applies here.

  • Morbo||

    Both Rockstar Games and its publisher Take Two Interactive are based in NYC.

  • santamonica811||

    Alas; no "Zelig" reference in your brief??? I get that there were space limitations, but it was such an iconic film and ahead of its time [heh, pun intended] re blending current actors into historical footage. Noticeable by its absence.

  • Hank Phillips||

    How fiction differs from reality. Since his essays against "Jews" in the Dearborn Independent, real people associate Henry Ford's name with German National Socialism.

  • Eugene Volokh||

    Hank Phillips: I think most real people don't really focus much on that (whether or not they should).

  • Jaye Poole||

    I certainly think of Ford as a Nazi sympathizer (and am shocked when people hold him in high esteem). I do distinctly remember years ago a Christian engineer from eastern Europe who i worked with briefly in Michigan seemed to not know or care about Ford's antisemitism and would push pamphlets of Ford's literature on new young engineers at the auto supplier we worked for. Who would subscribe to the life advice of a person like Ford?

    I find Ford to be despicable for his bigoted views. I would say that people should not white wash history and should instead acknowledge how awful such bigoted and racist attitudes are.

  • Mark22||

    I find Ford to be despicable for his bigoted views. I would say that people should not white wash history and should instead acknowledge how awful such bigoted and racist attitudes are.

    Ford's views were representative of a long history of anti-Semitic, racist, anti-capitalist, and eugenic ideas in the progressive movement. But since progressives reflexively hate successful big companies and free markets, they demonize him as opposed to many others of their members.

    In many ways, Ford is not too different from today's tech billionaires: a high tech entrepreneur with bigoted and repressive views about race and democracy.

  • santamonica811||

    EV,
    I think you'd be surprised at how many people make that association with Ford. Car genius and awful bigot. Or, bigot and car genius.

    That's how I think of him...the order depends on the context in which his name comes up.

  • Eugene Volokh||

    Oh, I'm sure there are many people (in raw numbers) who make that association -- I'm just skeptical that most people do (even if we're just talking about "real people").

  • ThanksForTheFish||

    I'm willing to bet that most people have no idea of his views, are too young to have been exposed to him personally, and could care less.

  • BestUsedCarSales||

    I'm proud to say that I'm all three of the qualities you mentioned. I hold my ignorance in high-esteem.

  • Mark22||

    Who makes the association of Charles Eliot or Oliver Wendell Holmes or the Carnegie Institution, the Rockefeller foundation, Kellog, Keynes, and numerous other leading intellectuals, industrialists, and politicians in the US with eugenics and forced sterilization? Not many. Yet, many of these people are still worshiped to this day.

  • Billy Bones||

    My first thought after reading this, how does this relate to Ed O'Bannon, etal lawsuit against EA Sports in which EA settled for $60M? I am failing to differentiate between the two cases. Both cases involve using a person's likeness in a video game. Could EA Sports have won their lawsuit had they not decided to settle? Is there some difference that I am missing? I used to love playing NCAA sport video games (much more than Madden or NBA2K), but those games are now extinct, which I attribute to this lawsuit. Of course, there would never have been an issue if not for the crooked, archaic organization known as NCAA and their protection of their non-taxation status.

  • Marcus Aurelius||

    EA was selling a game that used likenesses central to the game activity. You could play as specific players and use their stats, without them getting a cut. Very different (use of names). In the NFL, the nflpa had always gotten a cut when names and numbers were used. It's probably why you don't see college jerseys for sale (mostly) with active name/number combinations.

  • ScottK||

    What if Take Two simply called its characters Lindsay Lohan and Karen Gravano and put hyper-realistic images of them kissing on the game box cover and in the advertising?

  • Eugene Volokh||

    I think it should be protected in doing so, just as Midnight in Paris or Picasso at the Lapin Agile (Steve Martin's place about Picasso and Einstein, with the third main character being an unnamed but obvious Elvis Presely) are protected; as I discuss in Part II of the brief, I don't think there's a First Amendment distinction between video games and movies/plays/etc.

  • Stephen Lathrop||

    I suggest this distinction: movies/plays/etc. are used for the purpose of expression. A creator of expression makes them, and a consumer of expression uses them. Expression is what they are about. Can that be said of video games?

    I don't think users of video games thereby become either creators of expression, or consumers of expression. I think video game users engage in largely non-expressive entertainment. And if video game users aren't buying them to receive expression, then neither are video game designers analogous to other creators of expression—who sell their expressions to an audience which is looking to consume expression.

    Instead, video game designers market an entertainment product. But it is not expressive entertainment. Thus, video game designers' appropriation of celebrities within the products they sell is quite properly classed as advertising—and notably different from the several examples Professor Volokh has drawn from expressive culture

  • jph12||

    "A creator of expression makes them, and a consumer of expression uses them. Expression is what they are about. Can that be said of video games?"

    Yes.

  • ByteRot||

    "I suggest this distinction: movies/plays/etc. are used for the purpose of expression. A creator of expression makes them, and a consumer of expression uses them. Expression is what they are about. Can that be said of video games?"

    Several have said yes, and I've seen you offer no reasoning to support your conclusion that video game users engage in non-expressive entertainment.

    I'll go beyond saying yes, video games are expressive, to point out that modern single-player and cooperative campaign games provide narrative experiences, complete wtih scripts, voice acting and motion capture, story-boarding big action set-pieces, and so on. Some offer very linear experiences, which are directly comparable to film or television (with the exception that the consumer of these experiences can fail in some way, ending the narrative or forcing the player to repeat the section to proceed, none of which rises to the point of removing the expressive nature in my mind), others offer a variety of different, equally expressive outcomes or paths through the narrative, which the consumer then becomes a(n expressive) participant in choosing between. If anything, this seems more expressive through the nature of the collaboration between creator and consumer, not less.

  • tommyboy||

    Once again you got me, Stephen Lathrop. I read your comment before looking at the name. I thought what kind of uneducated, uncultured and ignorant person would deny that video games are expressive and then go through illogical contortions to come to the conclusions you have. Then I read your name. Par for the course.

    For your edification, many gamers do like immersive games that are highly expressive. Instead of watching someone fight evil, they do it themselves. People can be very emotionally invested in these games, especially where the plot, dialog, art and gameplay are professionally created as expressive works of art.

  • Mark22||

    Instead, video game designers market an entertainment product. But it is not expressive entertainment.

    Video games convey emotion, social commentary, criticism, sarcasm, wit, education, the full range of expressions you find in literature, often in a more direct and engaging way. To do so, they require in complex, non-linear storytelling and massive creation of visual art; you can fake much less in an interactive 3D environment than you can in a textual story or a movie.

    Your idea that they are somehow more commercial and less "expressive" just speaks to your own ignorance.

  • ScottK||

    I agree with Stephen - sort of. I don't think that SNL-type satire and video games inhabit the same universe. Admittedly it is not easy to draw a legal black line on the continuum of entertainment products - presumably Lorne Michaels could produce an SNL video game if he thought there was some market for it. But I do see a lot of VC commentary for the protection of rights to property, and there could hardly be a more unique property than a celebrity's own name and likeness. I'm personally not inclined to jettison the IP rights of celebrities entirely via the First Amendment, even if that makes for hard decisions.

  • jph12||

    "I don't think that SNL-type satire and video games inhabit the same universe."

    Me either. A lot more thought and effort goes in to producing the expressive content of the video games. But that's no reason Saturday Night Live shouldn't be protected.

  • Absaroka||

    "But that's no reason Saturday Night Live shouldn't be protected."

    Heh. Googling 'modern art' yielded this:

    Modern Art example

    Whatever one thinks about the artistic merits, I don't think it's controversial that that piece of canvas is expressive and has full first amendment protections. And it has one bit of expressive content. Arguing that some video game has less expressive content than that canvas seems like a tough sell.

  • David Nieporent||

    But I do see a lot of VC commentary for the protection of rights to property, and there could hardly be a more unique property than a celebrity's own name and likeness. I'm personally not inclined to jettison the IP rights of celebrities entirely via the First Amendment, even if that makes for hard decisions.

    Intellectual property, despite the name, is not property. And in any case the right of publicity is not actually an IP right.

  • Nick Gillespie's Jacket||

    Alas, the brief fails. Why? Because it didn't mention Jon Voight taking a big bite out of Kramer's arm. https://youtu.be/CgtGKurXBu4

  • WuzYoungOnceToo||

    I think the more important question here is...what the hell happened to Lohan's face? Fame and years have not been kind to that young woman.

  • nonzenze||

    You know full well, and as much as it's entirely her fault it's still kind of rude to point it out.

  • CE||

    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.

    I'm pretty sure that was the real Keith Hernandez and Marisa Tomei on Seinfeld.

  • Mark22||

    Lindsay Lohan derived her image from the stereotypical big breasted blond beach bunny, something that's clearly public domain on LA beaches. You can't take a public domain image, use it, and then claim to own it.

  • swood1000||

    I think that a celebrity should be able to prevent someone from commercially profiting off his image or persona without permission, such that a board or video game should not be allowed to paint an enticing picture of an actress in a swimsuit and use that as the principal background. In this case they are obviously trying to appropriate the allure or glamour of the person for their own economic benefit.

    I think that the California Supreme Courte answered the question correctly in Comedy III Productions v Saderup, which involved using the images of the Three Stooges on t-shirts. They said that unless there was nothing "added" to the images. They had not been "transformed. Therefore the t-shirt maker was simply trying to directly appropriate that original image for his economic benefit. Eugene objects to this test because people will be afraid to use such images for legitimate purposes (e.g. social commentary) since the test is too imprecise and they would be sued. Must we give a green light to pirates to appropriate the image that a celebrity has built up, or even to harm that image by associating it, for example, with some sort of vice?

  • Outside the Box||

    Good stuff! I'm convinced.

  • jenny rao||

    We are looking to get the sims mobile cheats online here when we need some cash here online.

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