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Thursday, 3 July 2014

OMG! This Is, Like, Unauthorized Commercial Use of Likeness! :(

I want to be left alone...
Actress Lindsay Lohan filed yesterday a right of publicity suit against the makers of the Grand Theft Auto V (GTA) video game in the New York Supreme Court, a court of first instance. The actress claims that GTA has violated her right of publicity by featuring the Lacey Jonas character in the GTA game. Lacey is blonde, an actress, and her favorite pastime is escaping paparazzi with the help of chivalrous GTA players. She also enjoys using the F. word and asking third parties driving fast cars whether she is indeed overweight.

Right of publicity protects individuals against the unauthorized commercial use of their likeness, and is recognized in New York by N.Y. Civil Rights Law §§ 50 and 51. Under § 50, 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.” 
§ 51 details the cause of action injunction and damages.

Whether the actress will be successful in his case depends on her ability to convince the court that Lacey Jonas is indeed an unauthorized commercial use of her likeness. As GTA is not using Lohan’s name nor even Lohan’s picture, the actress claims instead that GTA has used her “portraits and voice” without her written consent, and that GTA has used her portraits on the cover and in the GTA game.
Indeed, it is not necessary for a right of publicity claim to succeed that the exact name or photograph of the plaintiff has been commercially used. In The Naked Cowboy v The Blue M & M case, more likely to be cited in a court of law as Burck v Mars, Inc., the Southern District Court of New York explained that “any recognizable likeness, not just an actual photograph, may qualify as a portrait or picture.

Is the Lacey Jonas character indeed Lohan’s recognizable likeness? Lohan argues that
“[t]he portraits incorporated [Lohan’s ] likeness, clothing, outfits, [Lohan’s] clothing line products, ensemble in the form of hats, hair style, sunglasses, jean shorts worn by [Lohan] that were for sale to the public at least two years before the … release of the GTA game.”
Well, tomorrow is Fourth of July in the U.S.of A., and many self-respecting Yankees, me included, will don similar outfits to head to the beach and watch the fireworks. Lindsay Lohan indeed once designed a line of clothing, 6126, but the clothes worn by Lacey Jonas could have been bought at any U.S. shopping mall. As for the hair style, I know thanks to extensive study of gossip magazine covers that Lohan changes hairstyles quite frequently. Also, many other women, famous or not, favor wearing their hair long, blond, parted in the middle and flat, just as Lacey Jonas does.

The complaint also argues that GTA “features Hotel Chateau Mormont in West Hollywood, a place where [Lohan] once lived and often frequents,” and that the Lacey Jonas character “incorporated numerous personal aspects of [Lohan’s] life and identity,” without specifying further. This argument does not have much weight, as many blond and thin actresses frequent the famous hotel on Sunset Boulevard. If the Lacey Jonas character would have more in common with Lohan’s life and identity, such as having been banned from “Chateau Mormont,” having checked into rehab, having been a teen actress, and having been sentenced to community services, etc., the body of similarities between the GTA character and Lindsay Lohan would be more convincing.

Nevertheless, Lindsay Lohan is seeking punitive damages. Let’s wish we’ll see Miss Lohan again soon in a movie theater. 

2 comments:

Anonymous said...

If the role seen in the game is that of a character in a creative work then where's the claim? Its appears to be an attempt to retrospectively lay claim to the derivative merchandising rights arising from a creative work. Perhaps Lindsay Lohan should have cut a deal involving the derivative / merchandising rights when she signed the initial contract to play the role. T.C.

Anonymous said...

i know very few about the subject, but what about likeness as a general impression resulting from combination of factors.

let's say, if one asks in the street: who is "a blonde actress" AND "used to escaping paparazzi with the help of chivalrous GTA players" AND "enjoys using the F. word" AND "asking third parties driving fast cars whether she is indeed overweight". Probably, the answer will be Lacey Jonas.

Making a parallel with patents, it reminds an indirect infringement, i.e., only features together constitute likeness.

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