On 29 March 2018 the New York Court of Appeals closed the several years long court battle between the actress Lindsay Lohan and the company Take Two. In 2014 the actress sued Take Two, the publisher, producer and distributor of the computer game Grand Theft Auto V (GTA V) for the alleged unlawful use of her image. In 2016 the court dismissed her claim but the actress would not give up and appealed.
GTA V is one of a series of games where the player takes on the role of a gangster performing assignments on order. The story takes place in the fictitious state of San Andreas, in the city of Los Santos. The game also features secondary missions in which the player may participate. One of such missions is a flight from paparazzis, in which the player helps Lacey Jonas. Jonas introduces herself as a „very popular actress and singer, the voice of a generation”. Lindsay Lohan claimed that the Lacey Jonas character was her lookalike and was misleadingly similar to her both in appearance as well as tone of voice.
The next two graphics which allegedly involved the unlawful use of Lohan’s image were „Stop and Frisk” and „Beach Weather”. These graphics are displayed on the players’ screens while loading the game. Both characters were included in the promotion materials of the game GTA V in 2013, including posters, billboards and graphics on the game CD. The actress claimed that both characters are delusively similar to her.
„Stop and Frisk” graphics; source: rockstargames.com
The court had to determine two issues. First, whether an avatar (i.e. the graphic representation of a person in the game) may represent the image of a person within the meaning of Art. 5 of the New York Civil Rights Law. On this question the court gave an affirmative answer. The second issue was answering the question whether the company Take Two unlawfully used Lindsey Lohan’s image to promote the game and develop the Lacey Jonas character. The Court of Appeal ruled that both Jonas as well as the two images in the graphics „Stop and Frisk” and „Beach Weather” do not represent Lohan because Jonas is only an artistic representation of a twenty-something year old woman without any unique physical features. Further the court found the representations are nothing but an imprecise, satirical embodiment of the style, appearance and personality of a modern young woman going to the beach.
Importantly, even if the court found that the game makes use of Lohan’s image, because the game itself is not an advertising or commercial material, the actress’ image could not be protected by Art. 50 and 51 of New York Civil Rights Law. Furthermore, both games as well as books, films or theater plays are embraced by the First Amendment of the US Constitution concerning freedom of speech.
„Beach Weather” graphics; source: rockstargames.com
The judgment of the Court of Appeal finally ends the dispute between Lohan and Take Two since the actress has no further appeals available to her.The game Grand Theft Auto V has so far sold 90 million copies generating revenue of some 6 billion USD. As such it is one of the most profitable games in history.