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Grand Theft, but Not of Identities: NY Court Dismisses Claims by Lohan and Gravano

Source: Grill IP patents news

gtav-ny-court-dismisses-lohan-gravano-claimsComputer games are serious business. Top games can easily outsell Hollywood blockbusters, and the design and artwork involved can be as intricate as top-notch CGI. However, here the similarities end – and according to the New York Court of Appeals, this certainly applies to former “Mob Wives” star Karen Gravano and actress Lindsay Lohan. In Gravano v. Take-Two Interactive Software Inc. and Lohan v. Take-Two Interactive Software Inc., both plaintiffs had accused the makers of the video game “Grand Theft Auto V” of misappropriating their likeness. The Court disagreed, arguing that the game was a work of fiction that never utilized the names or pictures of either Lohan or Gravano; it therefore did not breach a statutory prohibition against using a person’s likeness for “advertising” or “trade.”

The Case

    Take-Two Interactive Software and its subsidiary Rockstar Games were individually sued by Lohan and Gravano, who argued that the game’s creators violated their rights to privacy according to New York state law by using the image and likeness of both plaintiffs without their approval. The defendants’ motion to dismiss the complaint was denied by New York’s Supreme Court.

    “Grand Theft Auto V” is set in the fictional city of “Los Santos,” in the correspondingly fictional state of “San Andreas.” Players participate in main story missions and have the opportunity to engage in various activities (many of them of a nefarious kind). Gravano and Lohan allege that during these activities, players will meet characters depicting both plaintiffs.  

    Lohan argued that the defendants used a lookalike model reflecting her persona, and “purposefully used Lohan’s bikini, shoulder-length blonde hair, jewelry, cell phone, and ‘signature peace sign’ pose.” According to Lohan, another image from the game involved appropriated “facial features, body type, physical appearance, hair, hat, sunglasses, jean shorts, and loose white top.” Additionally, she claimed that the defendants used her image on advertising materials for the game. Gravano charged the game’s creators with developing a character that uses the same phrases and has a storyline mirroring her history.

    On appeal, the New York appellate court reversed a lower court decision, and rejected the plaintiffs’ charges. Their claims failed according to New York Civil Rights Law Section 51, since Lohan and Gravano’s names, portraits, and pictures were not employed in the creation of the game. The appellate court further held that even if the plaintiffs’ contentions – namely that “Grand Theft Auto V” was sufficiently similar to constitute a representation of Lohan and Gravano – were accepted, they still would fail as the game did not constitute “advertising” or “trade” as defined in the New York Civil Rights Law Section 51’s definitions of such.

    In the eyes of the court, the plot, environment and characters of “Grand Theft Auto V,” in combination with the player’s ability to choose one’s approach to completing the game, rendered it a work of fiction deserving First Amendment protection.

    Concerning Lohan’s accusation that the defendants used her image in advertising materials, the court determined that “the images are not of Lohan herself, but merely the avatar in the game that Lohan claims was a depiction of her.” In sum, Take-Two Interactive is cleared of any alleged wrongdoing, leaving Lohan and Gravano in the dust, legally and virtually.

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