Video game developers scored major points when a New York court recently rejected Lindsay Lohan’s invasion of privacy claims against the developer of the popular video game Grand Theft Auto V.
The decision stems from a lawsuit originally filed in 2014 and gives rise to important implications that video game developers need to be aware of. We discussed some of the issues they face in a previous article, and this recent decision confirms that guidance.
Background: Right of Publicity Laws
The right of publicity is an individual’s right to control the commercial use of their name, likeness, and image. Right of publicity laws can vary from state to state. Some states have enacted specific statutes protecting an individual’s right to publicity, some other states offer only limited protections, and others offer none at all.
Right of publicity disputes often involve companies using the name and image of an actor or celebrity to market or sell products without their consent. In recent years, video game developers have also become the subject of right of publicity suits brought by actors, celebrities, and professional athletes.
As publicity lawsuits continue to become more common in the industry, video game developers need to be aware of the potential legal exposure they face when creating characters or avatars seemingly based on real-life individuals. And since the laws are different in each state, it is sometimes difficult to determine whether the particular right of publicity law covers the use of an individual’s likeness in a video game.
The Lohan Decision and Its Implications
The recent decision out of New York State’s highest court, however, has made clear that video game avatars are indeed covered by New York’s right of publicity law. In Lohan v. Take-Two Interactive Software, Inc., actor and celebrity Lindsay Lohan sued the video game developers of Grand Theft Auto V (GTA V) for allegedly misappropriating her “image, portrait, and persona.”
Lohan claimed that one of the characters in the game not only looked and sounded like Lohan, but also featured clothes based on her own clothing line. Lohan asserted that GTA V unlawfully replicated her “bikini, shoulder-length blonde hair, jewelry, cell phone, and ‘signature peace sign’ pose” solely to attract customers and generate sales.
Under New York’s right of publicity law, Lohan had to prove that GTA V used her name, portrait, or picture for advertising or trade purposes without her permission. More specifically, Lohan had to show that a video game avatar, such as the one used by GTA V, could be considered a “portrait,” and therefore protected by New York’s statute.
In the end, Lohan lost her appeal. The court found that the character in question was simply not recognizable as Lohan, as it was merely a generic depiction of a “twenty-something” woman with no identifiable characteristics. Despite ruling against Lohan, the court did conclude that video game avatars can be considered “portraits” under the state’s right of publicity law.
Thus, although the opinion is a win for video game developers, it also means that video game avatars can be covered under the New York law in the same way as other, more traditional depictions of a person, such as photographs and films. This is important for game developers to know, since it shows that even though a video game does not directly copy a celebrity’s picture, name, or talent, it can still run afoul of the law if an avatar looks or acts like a real person.
The Lohan decision extended the scope of New York’s publicity law to cover video game characters, and so it still remains important for developers to seek legal guidance before creating a character based on a real-life person, since such laws can differ drastically between states. As we had previously advised, the more closely the images and storyline of the avatar track back to a real person, the more risk the developer creates for the company. Determining where to draw the line is a highly fact-specific inquiry.
Kimberly Culp is a counsel in the San Francisco office of Venable LLP. She works with digital media, video game, and consumer products companies in resolving their high stakes intellectual property disputes.
Taylor Sachs is an associate in Venable's Intellectual Property Litigation Group