Driving Miss Lohan? Not According to the New York Court of Appeals

April 19, 2018 | Michael C. Cannata | Frank M. Misiti | Intellectual Property

Lindsay Lohan was not pleased with the alleged use of her likeness by Rockstar Games as an avatar in its Grand Theft Auto V video game. In her lawsuit against the game company, Lohan claimed that: (1) an avatar named “Lacey Jonas” that appears in the video game so resembled her that the avatar qualified as her “portrait;” and (2) Rockstar’s use of that portrait without Lohan’s written consent was a violation of New York Civil Rights Law §§ 50-51. But the New York Court of Appeals disagreed with Lohan holding that while an avatar can qualify as a “portrait” under the statute, the “Lacey Jonas” avatar was not, as a matter of law, identifiable as Lohan v. Take-Two Interactive Software, Inc., 2018 N.Y. LEXIS 721 (Mar. 29, 2018).

Grand Theft Auto V is an action-adventure video game set in the fictional city of Los Santos. During the game’s principal story line, the player navigates a group of criminal characters through a series of criminal operations. The game’s open-world concept also allows the player to explore additional game play events. In one of the additional events named the “Escape Paparazzi” scene, the player can help the Lacey Jonas avatar described as a “really famous” actress/singer to elude photographers.

Lohan alleged that the Jonas avatar was her “look-a-like” and that the avatar misappropriated her portrait and voice. Lohan described herself as a recognizable celebrity actor “regularly depicted” in the media for past 15 years, and claimed that the transitions screens evoked her image and likeness. Lohan sought, among other things, damages for invasion of privacy in violation of New York Civil Rights Law §§ 50 and 51. The trial court denied defendants’ motion to dismiss the complaint. The Appellate Division reversed and, subsequently, Lohan was granted leave to appeal to the Court of Appeals.

The Court of Appeals began its analysis by outlining the standards for a violation of New York Civil Rights Law §§ 50-51. In doing so, the Court stated that a plaintiff must prove that a defendant: (1) used the plaintiff’s name, portrait, picture, or voice; (2) for advertising or trade purposes; (3) without plaintiff’s consent; and (4) in New York.

Because the statute at issue was enacted in 1903, the first question the Court addressed was whether an avatar – a graphical representation of an individual – qualified as a “portrait” under the statute. The Court’s analysis of this question was guided by its understanding that “general legislative enactments are mindful of the growth and increasing needs of society, and they should be construed to encourage, rather than to embarrass, the inventive and progressive tendency of the people.” Through that lens, relying on cases that observe that a portrait can include an artistic reproduction of a person’s likeness, the Court concluded that an avatar may qualify as a “portrait” under the statute.

Going forward, the Court addressed the issue of whether Lohan was, in fact, recognizable from the Lacey Jonas avatar. While this is typically a factual question, the Court stated that before that question can even be considered by a fact-finder, there must be some basis for the fact-finder to conclude that the “person depicted ‘is capable of being identified from the advertisement alone’ as [the] plaintiff.” According to the Court, this threshold consideration is a legal determination based upon the “quality and quantity of the identifiable characteristics” portrayed in the avatar. With respect to the Lacey Jonas avatar, the Court concluded, as a matter of law, that the avatar was not recognizable as Lohan “as it merely is a generic artistic depiction of a ‘twenty something’ woman without any particular identifying physical characteristics.” The Court’s holding was bolstered by the fact that neither Lohan’s name nor photograph were used in the video game.

While Lohan was unsuccessful in her attempt to recover damages in connection with the use of an avatar, the Court of Appeals made it plain that the use of an avatar to represent a person’s likeness for advertising or trade purposes – without that person’s prior written consent – falls under the New York Civil Rights Law. As a result, a person may maintain an action to prevent the commercial use of an avatar that represents that person’s likeness and recover damages for any injuries resulting from such unauthorized use.

Click here to read the decision.

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