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Lindsey Lohan Loses Misappropriation of Likeness Suit Against Video Game Developer

Posted Thursday, April 5, 2018 by Kyle Straughan

In 2013, video game developer Rockstar Games, through its publisher Take-Two Interactive, released Grand Theft Auto V, the latest in their series of open-world games. The game, set in a fictionalized version of Southern California, included a minor character named Lacey Jonas, a young blonde woman the New York State Court of Appeals would later describe as a “beach-going young woman.” Jonas appears on discs containing the game, in several promotional images, and in-game where she requests the player’s assistance for a brief mission wherein the player escorts Jonas home to help her escape from paparazzi.

Shortly after the game’s release, celebrity Lindsey Lohan sued Take-Two Interactive in New York State for misappropriation of likeness and violation of her right of privacy. The complaint alleged that Lacey Jonas was an appropriation of Lohan’s likeness. Though the case survived a motion to dismiss, the trial court judge ruled against Lohan, who appealed first to the state’s appellate division, and then to the Court of Appeals (1). The primary question the Court of Appeals faced was centered upon whether Lacey Jonas constituted a “portrait” of Lindsey Lohan as defined by New York state law. The court decided that it did not, and determined that Jonas was an “indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman that are not reasonably identifiable as plaintiff.”

What is noteworthy about this decision is that the court held, in a unanimous ruling, that a video game avatar may constitute a portrait, and thus that if a party used someone’s likeness in a video game without permission they may be afoul of New York law. However, the court did not go into significant detail about what might sufficiently constitute a portrait in the video game context. Instead, the court noted that “legal determination will depend on the court’s evaluation of the ‘quality and quantity of the identifiable characteristics’ present in the purported portrait.” Meaning that any future decisions will be determined case-by-case.

While the precedential value of this holding is currently confined to New York, it may become persuasive authority in other states with similar laws.

(1): The Court of Appeals is the highest court in New York.

Opinion: https://www.nycourts.gov/ctapps/Decisions/2018/Mar18/24opn18-Decision.pdf

Lindsey Lohan Loses Misappropriation of Likeness Suit Against Video Game Developer ›› Ruttler Mills PLLC