Amicus brief says in-game likeness of Lohan is no privacy violation
Yes, Lindsay Lohan’s bad behavior has earned her a certain notoriety. That much is a given. But her infamy cuts both ways: She’s lodged firmly in the public’s consciousness, but like many celebrities that came before, her notoriety has turned into a cottage industry.
If we believe the complaint Ms. Lohan lodged back in 2014, Take-Two Entertainment and Rockstar Games, producers of the juggernaut Grand Theft Auto video game franchise, did their best to leverage her public profile to boost sales of the latest installment in their series, GTA V.
Three months prior to the game’s September 2013 release, the complaint alleges, the producers announced her name in reference to a “look-alike” mission within the game, in which a character modeled on Lohan, Lacey Jonas, asks the player to take her home – away from lurking paparazzi.
Lohan alleged that Take-Two and Rockstar used various aspects of her likeness without her consent, including a character model draped in clothes inspired by Lohan’s fashion sensibility, the signature “peace” sign she used in photos – even recordings of her actual voice. To round it out, the Jonas character was involved in situations seemingly inspired by Lohan’s life; for example, the look-alike was shown on the cover of one of the game discs in an “arrest pose.” The likenesses were used in the game itself and in advertisements for it.
Lohan sued for violations of right of privacy under New York civil rights law, seeking punitive damages and restraint of use of her likeness. The case survived a motion to dismiss in New York Supreme Court, but Take-Two and Rockstar appealed the denial and won in September 2016, effectively ending the case for Lohan. She immediately filed her own appeal.
In support of the game producers, a number of First Amendment and intellectual property law professors filed an amicus brief in late December 2017, taking on specific arguments advanced by Lohan in her case. They also analyzed arguments made in another similar case against the game producers by Karen Gravano, who alleged nonconsensual use of her likeness in the same game. (Gravano, daughter of former mob informant Sammy “The Bull” Gravano, is a reality TV star.)
The amici curiae took special exception to the central arguments of Gravano’s and Lohan’s separate cases. Gravano’s case, the brief states, asked the court to analyze the actions of the defendants under the “predominate purpose test.” Under this test, the right of privacy is violated when the work in question is predominately commercial rather than expressive in nature. The professors argue that this test is fundamentally unsound, as it separates motives on the part of the defendants that often coincide – there’s no reason, they argue, that art cannot be a commercial enterprise. Additionally, it forces judges to become, in effect, art critics, deciding on their own subjective criteria the expressiveness of any given work.
Lohan’s case, in their interpretation, implied a different test – the “transformative use” test favored by California circuit courts. In this case, right of privacy is not violated if the work transforms the likeness in some way – through parody, caricature or ironic commentary, for example. Again, the professors maintain the test is too subjective, pointing to Ninth Circuit right-to-privacy cases that seem to arbitrarily embrace or reject the test based on subjective artistic assessments made by the courts.
The professors display an Empire State of mind throughout the brief, which notes repeatedly the wisdom of the New York statute governing both cases. By narrowly restricting the right of privacy to the nonconsensual use of a likeness in commercial activity (for advertising or trade purposes, for example), New York “dodged a bullet.” In their interpretation, the statute’s strict boundary frees the court from making aesthetic judgments and creates an objective test for right of privacy violations, leaving First Amendment protections of creative work intact.
The amici also noted that advertisements for creative works that use likenesses deployed in the original work – in this case, billboard ads for GTA V and the game’s packaging, which featured Lohan’s double – were not, under New York law, violations of the right to privacy, offering another argument on behalf of Rockstar and Take-Two.
This case has implications for creative content productions and the advertising of those productions. However, the arguments of Rockstar and Take-Two, and of the law professors supporting them, would NOT apply to the use of a celebrity likeness (or other right-of-publicity usage) in an ad for a noncreative product, absent another potential fair use defense, such as a true parody. The case law on parodies in ads is mixed. For more information on the different applications of the First Amendment as it relates to rights of publicity and editorial versus advertising content, read this article.