Jul 5 2014
Actress Lindsay Lohan has filed a lawsuit in New York State Supreme Court against videogame publishers Take-Two Interactive Software, Inc. and Rockstar Games, alleging that her image and persona were incorporated without her permission into a character in the videogame “Grand Theft Auto V.”
GTA V includes a “side mission” in which players can assist game character “Lacey Jonas” by helping her evade the paparazzi. The Jonas character is also prominently featured on the GTA V box cover and in advertising for the game. In her Complaint filed July 1, 2014, Lohan alleges that the Jonas character incorporates her “image, likeness, clothing, outfits ,  clothing line products, ensemble in the form of hats, hairstyle, sunglasses, [and] jean shorts worn by [Lohan] that were for sale to the public at least two years before release of the GTA V game.” Lohan further alleges that the Lacey Jonas mission tells a story which tracks Lohan’s own life–allegedly making it “unequivocal that [Lohan] was the intended referent in the mission.” Lohan alleges a single cause of action, for alleged violation of her publicity rights under New York’s Civil Rights Law.
Lohan is not the first to sue Take-Two and Rockstar over a GTA V game character. In February 2014, Karen Gravano–daughter of reputed Gambino crime family lieutenant Sammy “The Bull” Gravano and star of the VH1 reality TV series “Mob Wives”–likewise filed a lawsuit in New York, alleging that the GTA V character “Antonia Bottino” incorporates Ms. Gravano’s “portrait,” “voice” and elements of her “life story.” (In another side mission, GTA V game players have the option of rescuing the Bottino game character from two male captors who are preparing to bury her alive. Bottino later reveals that she is the daughter of a mobster named “Sammy ‘Sonny’ Bottino,” who was captured and took a plea deal–prompting the retaliatory attempt on her life.) Take-Two and Rockstar have moved to dismiss the lawsuit, principally on Constitutional grounds: It is well settled that videogames are a form of creative expression fully protected under the First Amendment, which protection generally trumps a state law right of publicity claim.
The Gravano Court has not yet decided whether defendants’ Constitutional rights argument compels dismissal of Gravano’s state law publicity claim. The outcome will invariably inform the course of the newly-filed Lohan lawsuit, which relies on the same law.