Apr 3, 2018

Lindsay Lohan “Takes-Two” Appellate Losses

Video Game

Last Thursday, New York’s highest Court upheld the dismissal of a lawsuit filed by actress Lindsay Lohan accusing Take-Two Interactive Software, Inc., the maker of the popular video game Grand Theft Auto V (“GTA”), of violating her right to privacy.  This is the second appeal that Lohan has lost against Take-Two.

Lohan alleged that Take-Two used avatars (graphical representations of a person, in video game or like media) that depicted her in GTA.  The Court held while Lohan could base a privacy claim on the use of an avatar, an issue of first impression under New York law, the avatar in question was an “indistinct, satirical representation of the style, look and persona of  a modern, beach going young woman” and was not “reasonably identifiable” as Lohan.

New York’s Limited Right to Privacy

New York’s privacy laws are codified in Article 5 of its Civil Rights Law.  Section 50 of New York’s Civil Rights Law states:  “A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”

Civil Rights Law § 51 provides a civil enforcement mechanism for violations of Section 50.  It reads, in relevant part, “[a]ny person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as [provided in Civil Rights Law § 50] may maintain an equitable action . . . to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. . . .”

In this instance, Lohan sued Take-Two alleging that it violated her right to privacy under Sections 50 and 51 of the New York Civil Rights Law.  The Court held that the term “portrait” as used in these sections “embraces both photographic and artist reproductions of a person’s likeness” and is broad enough to include technological advancements, such as avatars.  Despite this holding, the Court dismissed the lawsuit because the avatars in question were not recognizable as Lohan and they were “nothing more than cultural comment.”

The Advertising and Trade Elements of New York’s Civil Rights Law

The Court expressly declined to rule on other contentious issues that could have been decided on this appeal, such as whether GTA is a fictional or satirical work that is exempt from New York’s publicity statutes and afforded First Amendment protection.  This is significant because the lower appellate court, from which this appeal was taken, ruled that GTA was “a work of fiction and satire.”

The full text of this decision is available here.