Litigation

ACTRESS LOSES CLAIM VIDEO GAME USED HER IMAGE

On September 1, 2016, the Appellate Division of the Supreme Court of New York,  First Department, upheld a lower court’s dismissal of actress Lindsay Lohan’s misappropriation of likeness lawsuit against the video game manufacturer Take-Two Interactive Software and another defendant. Ms. Lohan and another plaintiff alleged that the defendants used a look-alike model in the video game "Grand Theft  Auto V” to evoke their persona and image.

The Appellate Division concluded that Ms. Lohan's causes of action under the New York Civil Rights Law failed because the defendants did not use her name, portrait, or picture. The defendants never referred to Ms. Lohan by name or used her actual name in the game, never used Ms. Lohan herself as an actor for the game, and never used a photograph of Ms. Lohan.

Even if the video game depictions were close enough to be considered a representation of Ms. Lohan, the Appellate Division found that her claims should be dismissed because the game did not fall under the statutory definitions of "advertising" or "trade." Under New York law, works of fiction and satire do not fall within the narrow scope of the statutory phrases “advertising” and “trade.” The Appellate Division concluded that the game's unique story, characters, dialogue, and environment, combined with the player's ability to choose how to proceed in the game, rendered the game a work of fiction and satire.

Although Ms. Lohan claimed that her image was used in advertising materials for the game, the Appellate Division noted that the images were not of Ms. Lohan herself, but merely the avatar in the game that Ms. Lohan claimed was a depiction of her, and that the character in advertising was incidental or ancillary to the permitted use, and therefore was not commercial.

Lexis subscribers can access the opinion at: Gravano v Take-Two Interactive Software, Inc., 2016 N.Y. App. Div. LEXIS 5819.

Lexis Advance subscribers can find the opinion at:  Gravano v Take-Two Interactive Software, Inc., 2016 N.Y. App. Div. LEXIS 5819.

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