Lindsay Lohan and New York Right of Publicity: An Update ✌ ✌ ✌ ✌

Readers of this blog may remember that last July Lindsay Lohan sued Take-Two Interactive Software Inc. and Rockstar Games,  the makers of the video game Grand Theft Auto V (GTAV). The actress claimed that the character “Lacey Jonas” and the portrayal of young, blond women in two transition screens are unauthorized commercial uses of her image and thus violated her rights under New York right of publicity law. This law, New York Civil Rights Law §§50-51, prevents the use of a “name, portrait, picture or voice…within [the state of New York] for advertising purposes or for the purposes of trade without … [prior] written consent].” Defendants have movedto dismiss the complaint with prejudice.

Defendants are arguing that the parts of GTAV where “Lacey Jonas” does appear are not advertising or trade, but is instead an artistic work, and thus out of the scope of New York right of publicity law. Defendants cited several New York cases to support this claim, such as Costanza v. Seinfeld and Krupnickv. NBC Universal.

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Defendants are also arguing that the First Amendment is an absolute bar to the complaint , as “a creative work like GTAV simply cannot give rise to a right of publicity claim,” quoting Lohan v. Perez, a 2013 Eastern District of New York (EDNY) case (not a SDNY case, as stated in Defendants’ memorandum of law). In this case, Lindsay Lohan lost her right of publicity suit against rapper Pitbull. She had claimed that the lyrics of Pitbull’s song “`Give Me Everything'" which stated “So, I'm tiptoein', to keep flowin'/ I got it locked up like Lindsay Lohan" violated her right of publicity, but Pitbull’s First Amendment defense prevailed. The EDNY noted that “the use of an individual's name — even without his consent — is not prohibited by the New York Civil Rights Law if that use is part of a work of art.”

Defendants also claim that Plaintiff’s voice is not used in GTAV, and that “she is not visually depicted or mentioned by name.” As for being chased by paparazzi, this is not a portrayal of “identical events to [Plaintiff’s] life,” as stated in the complaint, because such events are “hardly unique to [Plaintiff].” The young, blonde women portrayed in the transition screens, one taking a ‘selfie’ wearing a bikini and making the “V” sign, the other leaning over a car while being frisked, could be any other young, blond woman, and do not resemble Plaintiff. Indeed, blondes have more fun.

Lindsay Lohan claimed that the “Escape Paparazzi,” a GTAV “random event” where the “Lacey Jonas” character is chased by paparazzi is based on her life, but Defendants argue that New York right of publicity law “does not recognize right of publicity claims based on life story.”

Defendants are also seeking sanctions against Plaintiff and her counsel claiming that the action is frivolous, and that “her claim is so legally meritless that it lacks any good-faith basis and can only have been filed for publicity purposes.”