Law Professors Amicus Brief Filed in Support of Take-Two Interactive

Professor Eugene Volokh and his Scott & Cyan Banister First Amendment Clinic at UCLA School of Law recently filed an amicus brief on behalf of several law professors in the Lindsay Lohan v. Take-Two Interactive case currently pending at the New York Court of Appeals.

Lindsay Lohan sued in 2014 Take-Two Interactive, the maker of the “Grand Theft Auto V” video game, claiming that it had used her image when creating the character Lacey Jonas, see here and here, and thus violated her right to privacy under New York Civil Rights Law § 51 by misappropriating her likeness.

Reality show star Karen Gravano filed a similar suit, claiming that the character Andrea Bottino was modeled after her.

Both of these actions failed, as Take-Two did not use Plaintiffs’ names, portraits or pictures. The game did not refer to Plaintiffs by name, did not use their actual names in the video game, did not use them as actors, and did not use their photographs either, see here. Plaintiffs have appealed.

Characters are protected by the First Amendment

The brief concentrates on the free speech issue, arguing that video games are expressive works and thus protected by the First Amendment.

The authors of the brief argue that “[c]elebrities like Gravano and Lohan are significant parts of that “popular culture,” and Take-Two must be free to use even their literal names

and likenesses (as was done in Forrest Gump, for example) to capture the essence of that culture.”

The brief cites  the Comedy III Productions, Inc. v Gary Saderup, Inc., where the California Court of Appeals found that the right of publicity “has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are iconoclastic, irreverent, or otherwise attempt to redefine the celebrity’s meaning.”

New York law only protects against unauthorized use of likeness in trade

Authors of the brief also argued that the New York right of privacy is generally limited to commercial advertising, and does not extend to creative works.  Indeed, New York state does not recognize a common law right of privacy, only a statutory right of publicity, and New York right of publicity statute only forbids the use without consent of a person’s name, portrait, picture or voice “for advertising purposes or for the purposes of trade.”

The New York courts have consistently interpreted the law narrowly and the Appellate Division held in September 2016 that the Grand Theft Auto V video game, “does not fall under the statutory definitions of ‘advertising’ or ‘trade.’”

The authors of the brief also argue that only explicit use of a person’s name or likeness is protected by New York right of publicity statute. A mere suggestion is not enough.

A recent attempt to expand the scope of New York right of publicity law

The New York Legislature is trying to expand the scope of New York right of privacy by enacting Assembly Bill A08155. The bill would make the likeness of an individual a personal property, freely transferable.

It defines the “likeness” of an individual as “an image, digital replica, photograph, painting, sketching, model, diagram, or other recognizable representation of an individual's face or body, and includes a characteristic.” A “characteristic” is defined as “a distinctive appearance, gesture or mannerism recognized as an identifying attribute of an individual.”

Is a video game protected by the First Amendment?

The bill has not been enacted. Plaintiffs’ claims may prosper under this law, or may not, as it provides a First Amendment defense. The main issue would then no longer be whether the creators of the game indeed used Plaintiffs’ likenesses, but whether a video game is worthy of the protection of the First Amendment.

Plaintiff Gravano seems to have anticipated this hypothesis, as she argues that “a video game that is primarily a commercial product [is] not afforded absolute protection as a creative work.”

However, authors of the brief cite the Supreme Court City of Lakewood v Plain Dealer Publ’g Co where the court explained that “the degree of First Amendment protection” of speech “is not diminished merely because the . . . speech is sold rather than given away.”

Stay tuned…

Image courtesy of Flickr user Fred Miller under a CC BY-SA 2.0 license.

Narrow Scope of New York Right of Publicity Statute Favors First Amendment, Not Lindsay Lohan

Readers of the IP Kat blog may remember that actress Lindsay Lohan sued Take-Two Interactive, the maker of the “Grand Theft Auto V” video game, claiming that it used her image when creating one of the characters of the game, a blond starlet. But, on September 1, a New York appellate Court ruled against Lohan, and also, in the same decision, against Karen Gravano of the VH1 reality TV show Mob Wives, who had similarly claimed that Take-Two had used her likeness in the video game.

The narrow scope of New York right of publicity law

New York has a limited right to privacy. Its only privacy law, New York Civil Rights Law §§ 50 and 51, does not recognize a general right to privacy, but only protects the right of publicity of a “person, firm or corporation” in order to prevent “uses for advertising purposes, or for the purposes of trade” of the “the name, portrait or picture of any living person without having first obtained the written consent of such person.”

Therefore, in order to be a misdemeanor under New York law, an unauthorized use of the name, portrait or picture of an individual must have been for trade or advertising. The scope of the law is quite narrow.

No use of the name, portrait or picture

The appellate Court dismissed Lohan’s claim, because the video game “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.” Instead, the game features an avatar, not an actual image of Lohan. New York law does not recognize protection of the persona, and merely “evoking likeness,” such as using her hair length, white shirt, flashing the peace sign, or using her “screen persona,” as Lohan claimed Take-Two Interactive had done when creating the character, is not enough to trigger application of New York right of publicity statute.

No use in advertising or trade

The appellate court noted further that, even if the video game would indeed have used Lohan’s likeness within the meaning of New York right of publicity statute, it still would not have violated the law, because a video game is not an advertising or a trade within the meaning of New York Civil Rights Law § 50. Instead, it is a video game communicating ideas, and, as such, is protected by the First Amendment to the U.S. Constitution: “[t]his 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.”

A good decision for creators

If the New York law would be constructed by the courts to include use which merely “evoke” the persona of the plaintiff, creators of video games, such in this case, but also biographers, comic books artists, painters, caricaturists and novelists, who merely “evoked” the persona of an individual would have to prove that the use was protected by First Amendment, which may be challenging to do, and thus costly. The Supreme Court recently denied petition in the Electronic Arts v. Davis case, and so it will not answer the question asked by petitioner, “[w]hether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.” The Ninth Circuit did not find in this case that the use of likeness of former NFL players in a video game was protected by the First Amendment. This case was a California right of publicity case. Each state has its own statute, and there is no right of publicity federal statute, leaving for a diverse jurisprudence.