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Lindsay Lohan and the right to publicity

Print publication

21/09/2016

Karen Gravano (of Mob Wives fame) and Lindsay Lohan have failed in their lawsuit [1] in which they claimed that Grand Theft Auto V had misappropriated their images in violation of New York law.

For those unfamiliar with the game, the judgment offers a summary: “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.”  The plaintiffs claimed that, during certain optional random events, the player encounters characters that are depictions of the plaintiffs.

The “right to publicity”, by which individuals can sue if their name, likeness or other identity attribute(s) are used in products, varies from state to state. Unfortunately for the two plaintiffs in this case, the New York state law is rather more constrained than the law in some other states.  In the state of New York, the “right to publicity” is restricted to “name, portrait, or picture” and not to other attributes.  Furthermore, the New York right applies in respect of use in advertising products only and not to entertainment products.

The Manhattan Appellate Court held that the claims must fail because the defendants had not used the plaintiffs’ respective names, portraits or pictures. Regarding Lohan’s claim, for example, the Court said: “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.”

In any event, the game did not fall within the statutory definition of “advertising” or “trade”. (Interestingly, the Court described the game as a “work of fiction or satire”.)

The Court also dismissed Lohan’s argument that her image was used improperly to advertise the game as the images were “not of Lohan herself, but merely the avatar in the game that Lohan claims is a depiction of her”.

We discussed the concept of the image right in UK law in the context of José Mourinho’s appointment as Manchester United manager in our last newsletter.

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[1] Gravano v Take-Two Interactive Software, Inc and Lohan v Take-Two Interactive Software, Inc

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