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.

Former Professional Wrestler Sues Van Morrison for Using his Likeness without Authorization

Billy Two Rivers, a former professional wrestler, is suing musician Van Morrison and his record label company, claiming that, by using his likeness on the cover of the upcoming Roll With the Punches album, they infringed his right of publicity, as protected by New York State’s statutory right to publicity, New York Civil Rights Law §§ 50 and 51, and false endorsement under the Trademark act. The case is Two Rivers v. Morrison, 1-17-cv-05720 (Southern District of New York).

To say that Plaintiff has had an interesting life is an understatement, as he was a professional wrestler from 1953 to 1977, competing in Canada, the U.S. and abroad. He appeared in ten films and television programs. After retiring, he was for 20 years a leader of the Mohawk nation on the Kahnawake reservation, as an elder and a counselor. He is still recognized as an elder and advisor to the First Nations people. The British band The Dogs D’Amour named a song after him in 1988, and Pulitzer Prize-winner Paul Muldoon wrote a poem, “My Father and I and Billy Two Rivers”, about watching Plaintiff competing in a wrestling match. A British racing horse was named after him, with Plaintiff’s consent. 

Roll With the Punches will be Van Morrison’s 37^th studio album and is set for release on September 22, 2017. Its cover features a black and white photo of Plaintiff engaged in a wrestling match. The cover of the album was used to promote Van Morrison’s tour, and generally to promote the sale of the album, both online and off-line. Plaintiff claims he did not authorize the use of this photo for the album cover. The complaint alleges that he was not even contacted by Defendants.

New York Civil Rights Law § 50, enacted in 1903, makes it a misdemeanor for “[a] person, firm or corporation [to use] 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...” We saw in a former post that the New York Legislature is actively trying to expand the scope of the law. However, Plaintiff does not need such expansion to file his suit. If the fact alleged in the complaint can be proven, it is a clear case of unauthorized use of likeness for commercial purposes.

Plaintiff is asking the court to enjoin any further use or dissemination of the cover, and to permanently dispose of the albums already produced. He is also asking the court to award him punitive damages.  The case just settled out of court.

New York State Fails to Extend the Scope of its Right of Publicity Statute

New York State has a statutory right to publicity, New York Civil Rights Law §§ 50 and 51. It 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.”

The New York legislature recently tried to expand this right, but this attempt was so far unsuccessful, and the legislature is now in recess.

Assembly Bill A08155, introduced on May 31, 2017, proposed to establish a right of publicity for both living and deceased individuals. It also proposed that an individual's name, voice, signature and likeness would be a freely transferable and descendible personal property, making the right of publicity a property right more than a privacy right, as it is now.

If one of our readers know Japanese, please let us know what it says!

An expansion of the scope of the law

Readers of the blog may remember that Lindsay Lohan claimed that flashing the V sign was part of her persona and was thus protected by New York right of publicity law. She was unsuccessful as the scope of New York’s right of publicity law is narrow.

The bill would have considerably expanded the scope of the law, as it would have also have protected the “likeness” of an individual, which it defined 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.”

The bill defined the “characteristic" of an individual as “a distinctive appearance, gesture or manner.” So, Lindsay Lohan’s V sign could arguably be protected would the bill been enacted.

The geographic scope of the statute would also have been considerably extended. The bill would have protected the right of publicity of a deceased individual, for forty years after the death of the individual, and this, “regardless of whether the law of the domicile, residence or citizenship of the individual at the time of death or otherwise recognizes a similar or identical property right.” This could be interpreted as meaning that the law would have applied to virtually anyone in the world…

A right of publicity transferable and descendible

The bill considered the likeness to be personal property, freely transferable:

“A living or deceased individual's name, voice, signature and likeness, individually and collectively known as his or her right of publicity, is personal property, freely transferable or descendible, in whole or in part, by contract or by means of any trust or testamentary instrument…”

If an individual would have transferred his right of publicity, there could have been a risk of losing control over the use of one’s likeness, even for unsavory use, unless the contract transferring such rights would have been carefully written to protect the individual against such occurrence. One can imagine that a young, talented and beautiful, but nevertheless impecunious individual could have signed up his right of publicity in exchange for money badly needed at the time.  

New York State, unlike California, does not recognize that deceased individuals have a right to publicity and the bill would have provided such right. The bill detailed at length how such right would have vested to the heirs, whether by will or, in the absence of a will, under the laws of intestate succession. The bill also specified that the rights thus inherited could have been “freely transferable or descendible by any subsequent owner of the deceased individual's right to publicity…”

The right of publicity would have terminated at the death of the individual who would not have transferred it by contract, license, gift, trust or by will, and if he had no heirs who could have inherited it under the laws of intestate succession.

Such rights would not have “render[d] invalid or unenforceable any contract entered into by a deceased individual during his or her lifetime by which the deceased individual assigned the rights, in whole or in part, to use his or her right of publicity…”

First Amendment defense

The bill would have provided a First Amendment defense. It would not have been necessary to secure the consent of the individual for using her right of publicity if such right would have been

“used in connection with… news, public affairs or sports broadcast, including the promotion of and advertising for a public affairs or sports broadcast, an account of public interest or a political campaign;… a play, book, magazine, newspaper, musical composition, visual work, work of art, audiovisual work, radio or television program if it is fictional or nonfictional entertainment, or a dramatic, literary or musical work;… a work of political, public interest or newsworthy value including a comment, criticism, parody, satire or a transformative creation of a work of authorship; or an advertisement or commercial announcement for any [news, public affairs or sports broadcast, including the promotion of and advertising for a public affairs or sports broadcast, an account of public interest or a political campaign].

These exceptions are quite broad, and so, while the bill expanded the scope of the New York right of publicity, it also expanded the scope of the exceptions to this right.

The Authors Guild expressed its “grave concerns” about the bill, in a letter to three members of the New York legislature, as it “has the potential to cause great harm to our society’s knowledge-base and to stifle speech,” as it would make it difficult for authors “to write without restraint about public figures,” who may threaten to file a right of publicity suit to stifle speech critical of them.

A well-managed right of publicity is a golden egg

The law is not clear enough

A work thus exempted “that includes a commercial use and replicates the professional performance or activities rendered by an individual” would not have been exempt “where the replication is inextricably intertwined with the right of publicity of such individual,” subject, however, to the First Amendment and section eight of article one of the New York state constitution protecting freedom of expression. What does “inextricably intertwined” mean? Your guess is as good as mine…

Owners or employees of any medium used for advertising which would have published or disseminated an individual's right of publicity would not have been liable unless established that “they knew the unauthorized use was prohibited by [the New York statutory right of publicity]. Would owners and employees only benefited from this immunity if they did not know the use to be unauthorized and that such unauthorized use was prohibited by law, or would the knowledge that the use was unauthorized been enough? It is difficult to say.

Let’s hope that the bill will be written again in a more precise way, and that its scope will be narrowed. We’ll keep you posted.

Image of Japanese building courtesy of Flickr user antjeverena under a CC BY-SA 2.0 license.

Image of eggs is courtesy of Flickr user Karen Roe under a  CC BY 2.0 license.