In 2016, the Fenwick games team detailed actress Lindsay Lohan’s lawsuit against the makers of “Grand Theft Auto V” for allegedly violating her right of publicity. You can read the full article on Fenwick.com.

On March 29, 2018, New York’s highest court issued a unanimous decision affirming the lower court’s dismissal of Lohan’s case. The appellate court concluded that Grand Theft Auto V character, “Lacey Jonas,” did not implicate Lohan’s publicity rights under New York law.

The decision is notable for two reasons:

First, it reaffirmed the narrowness of New York’s right of publicity statute, which only protects a person’s name, portrait, picture or voice.

Second, it clarified that a “portrait” theoretically encompasses an in-game rendering or depiction of a person, such as a game avatar. But in order to be actionable under New York’s publicity statute, the in-game rendering has to be recognizable as the plaintiff. Although Lohan had a theoretically valid claim, the court concluded that the Jonas character was merely “a generic artistic depiction” of a modern, 20-something, beach-going woman without any particular identifying physical characteristics linking her to Lohan.

In light of the Lohan decision, game developers should remember to consult with counsel early in the development process to avoid potential publicity-related pitfalls.