A New York appeals court has dismissed a lawsuit brought by Lindsay Lohan against the creator of the Grand Theft Auto video game series, which claimed it unlawfully used her likeness in the video game.
Lohan argued an avatar featured on the box of the video game, and in the video game’s introduction montage, was plainly modeled on her, as they shared many physical characteristic, mannerisms, and styles of dress. In the course of the game, the player also encounters a celebrity whom he may help escape from paparazzi. Though the character is a minor one, events in her in-game life mirror those of Lohan’s.
Plaintiff lawyer’s argued the use of her likeness violated New York’s right of publicity law, which forbids the use of a person’s likeness for advertising or trade without their expressed written permission. (RELATED: Lindsay Lohan Showed Her Fans EVERYTHING When She Posted This Bikini Photo)
As law professor Eugene Volokh explains on his blog at the Washington Post, New York’s right of publicity law is narrowly tailored compared to those of other states. It applies only to a person’s name, portrait, or picture, and not merely similar attributes. He further explains that the law is only applicable in the advertising, not the entertainment context, and that the video game itself is protected First Amendment speech.
“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,'” the court wrote. “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.”
The court had previously dismissed a similar suit brought by Karen Gravano, the daughter of convicted mobster Salvatore Gravano.
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