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From Intellectual Property Law Daily, March 30, 2018

‘Grand Theft Auto’ images were not recognizable as Lindsay Lohan; not actionable

By Thomas Long, J.D.

Although an "avatar"—a graphical representation of a person in a video game or similar media—could constitute a "portrait" for purposes of the privacy provisions of New York Civil Rights Law Sections 50 and 51, images displayed in the highly successful game "Grand Theft Auto V" were not recognizable as the actress Lindsay Lohan and did not support Lohan’s state-law publicity rights claims against the game’s creators and sellers, New York’s highest court has held. The images—which appeared in the form of a game character, interstitial screens containing still images of that character, and related advertising and promotional materials—were indistinct, satirical representations of a modern, beach-going young woman that were not reasonably identifiable as Lohan. The court affirmed dismissal of Lohan’s claims (Lohan v. Take-Two Interactive Software, Inc., March 29, 2018, Fahey, E.).

"Grand Theft Auto V." The defendants developed, marketed, and distributed "Grand Theft Auto V" (GTAV) and other video games. GTAV was an action-adventure game set in the fictional state of San Andreas, which was intended to evoke Southern California. The game’s plot was set in and around the fictional city of Los Santos, which was a fictionalized version of Los Angeles. Along with a 50-hour principal storyline, the game contained about 100 hours of supplementary play consisting of "random events" that a player could choose to explore. One of these random events—called by the defendants the "Escape Paparazzi" scene—involved a character named Lacey Jonas hiding from paparazzi in an alley. If a player chose to help Lacey Jonas escape from the photographers, the character entered the player’s car and described herself as an "actress slash singer" and the "voice of a generation." Jonas also described herself as "really famous," and the player’s character recognized that the character had starred in romantic comedies and in a "dance-off movie."

Still images; advertisements. Before the GTAV storyline could proceed to any random events, the player had to view "transition screens" that contained artwork that displayed briefly while the game content was loaded into the console’s memory. One of these transition screens was an image (referred to as the "Stop and Frisk" image) of a blonde woman in denim shorts, a fedora, necklaces, large sunglasses, and a white t-shirt, being frisked by a female police officer. Another screen contained an image (the "Beach Weather" image) of the same blonde woman wearing a red bikini and bracelets, taking a "selfie" with her cell phone, and displaying the peace sign with one of her hands. The defendants allegedly used the "Stop and Frisk" and "Beach Weather" images on promotional materials, including billboards, to advertise GTAV prior to its release. The "Beach Weather" image also was used on the packaging for GTAV, and both images were reproduced on game discs.

Privacy claims. Lindsay Lohan asserted that the Lacey Jonas character was a lookalike of her and misappropriated her portrait and voice. Lohan also asserted that the "Stop and Frisk" and "Beach Weather" images evoked her likeness and persona. According to Lohan, she did not give the defendants permission to use her portrait in the game or in advertising for it. Lohan filed suit for invasion of privacy under Sections 50 and 51. Section 50 made it a misdemeanor to use a living person’s "name, portrait or picture" for advertising or trade purposes without consent. Section 51 created a civil cause of action for damages and injunctive relief. Together, the statutory provisions have been characterized as providing protection for living persons’ "publicity rights."

Scope of statutory protection. The court noted that Sections 50 and 51 were not applicable to noncommercial uses of a person’s likeness. Courts had cabined Section 51 to preclude actions involving uses that constituted reporting on newsworthy events or matters of public interest, as well as works of humor, fiction, and satire. The policy for this restriction was that freedom of expression transcended the right to privacy. However, the court did not need to whether the GTAV images were excepted from Section 51’s coverage as noncommercial uses because, in the court’s view, the artistic renderings in GTAV and related promotional materials were indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman that were not reasonably identifiable as Lohan.

Avatars. The court first addressed the question of whether a video game "avatar" could qualify as a "portrait," for purposes of Section 51, which was enacted in 1903. Employing the theory of statutory construction that general terms encompassed future developments and technological advancements, the court concluded that an avatar could constitute a "portrait" within the meaning of the statute. The court previously had held that the term "portrait" embraced both photographic and artistic reproductions of a person’s likeness. Federal courts had recognized that any recognizable likeness—not just a photograph—could qualify as a "portrait or picture."

"Portrait." However, in this case, even applying the deferential rules appropriate in the context of a motion to dismiss, the court held that the images in question did not, in fact, constitute a "portrait" of Lindsay Lohan. There could be no appropriation of a person’s likeness for commercial purposes if she was not recognizable from the image in question. A privacy action could not be maintained under Section 51 for the nonconsensual use of a representation without identifying features. Even though the question of whether the avatar in GTAV was a "portrait" because it presented a recognizable likeness was ordinarily a question for the trier of fact, before a factfinder could decide the question there had to be a basis for it to conclude that the person depicted could be identified from the relevant image alone. In the court’s view, the Jonas character simply was not recognizable as Lohan and was merely a generic artistic depiction of a "twenty something" woman without any particular identifying physical characteristics. The same was true of the "Beach Weather" and "Stop and Frisk" illustrations. The ambiguous representations in question were therefore not actionable, the court said.

The case is No. 24.

Attorneys: Frank A. Delle Donne (Monaco & Monaco, LLP) for Lindsay Lohan. Jeremy Feigelson (Debevoise & Plimpton LLP) for Take-Two Interactive Software, Inc.

Companies: Take-Two Interactive Software, Inc.

MainStory: TopStory PublicityRights TechnologyInternet NewYorkNews

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