Monday, October 31, 2016

Navigating the Intersection of Privacy and Free Speech: How Grand Theft Auto V Sped Right Past Lindsay Lohan’s Privacy Lawsuit

Court Finds New York Privacy Statute a Roadblock to Recovery

Should the law protect your right to control or exploit the use of your likeness? If so, are there exceptions to accommodate free speech rights? A recent decision by a New York appellate court highlights the tension between an individual's right to his or her image or likeness and the strong protections for free speech embodied in the First Amendment. 

A few years ago, Lindsay Lohan sued Take-Two Interactive Software and its subsidiary, Rockstar Games, developer of the action adventure video game Grand Theft Auto V. She claimed that her likeness, persona, and image -- including her clothing style, physical appearance, jewelry, phone, and signature peace sign -- were used in the game, all without her permission and in violation of her privacy rights under New York law. GTA V, as it is commonly known, is an extremely popular video game (albeit very controversial, hence its M for Mature rating) and part of a series that has sold over 200 million copies. The fictional storyline of the game involves the player in a world filled with opportunities to engage in criminal wrongdoing and misadventure. It is set in the city of Los Santos, in a fictional state called San Andreas.

The court evaluated Lohan’s claim under a well-known New York statute that bears the title “Right of privacy.” Under this law, which is over 100 years old, it is a misdemeanor to use, without prior permission, “the name, portrait or picture of any living person” for advertising or trade, and a related section authorizes the injured party to seek money damages and an injunction. The law originally was enacted in direct response to a much-criticized decision by New York’s highest court in 1902. That decision rejected a claim of privacy in a case that presented a set of facts that were egregious: Abigail Roberson, the plaintiff, was a young woman who -- without ever being asked permission -- found her image on thousands of posters advertising for a local flour mill. While the lower court ruled in her favor, the Court of Appeals refused to adopt a right to privacy because, in its view, such a right historically was not part of the common law (the decisions handed down by judges that form precedent for future cases) and, if adopted, an endless series of claims might ensue. The court acknowledged that the legislature could create such a right by statute, which the legislators did the following year. The privacy statute remains the exclusive source of this type of privacy right in New York. Courts have continued to restrict recovery to the statute, as opposed to other states that have developed more expansive common law protection.

The court ruled that GTA V was entitled to protection under the First Amendment as a work of fiction and satire based on its "unique story, characters, dialogue, and environment. . . ." In a 2011 decision, the U.S. Supreme Court had held that video games, while not a traditional medium of expression, are fully protected as speech under the First Amendment.
Like the protected books, plays, and movies that preceded them, video games communicate ideas -- and even social messages -- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, “esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.” . . . And whatever the challenges of applying the Constitution to ever-advancing technology, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary” when a new and different medium for communication appears.
Lohan's claim was really about her desire to reap economic benefit as opposed to privacy. Indeed, the appellate court was quite dismissive in ruling against Lohan (and Karen Gravano, daughter of Sammy Gravano, on similar grounds in a case decided at the same time) and used the legal equivalent of a machete in ordering Lohan’s case dismissed. The court noted that the game did not use Lohan’s name, picture, or actual likeness, which are the only rights protected by the statute; the game -- which it found to be a work of fiction and satire -- did not constitute “advertising or trade” under the statute; and, finally, the claimed use of Lohan's alleged image in advertising for the game was not commercial because it was the avatar and was incidental.
As to Lohan's claim that an avatar in the video game is she and that her image is used in various images, defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan . . . . 
Even if we accept plaintiffs' contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs' claims should be dismissed because this video game does not fall under the statutory definitions of "advertising" or "trade" . . . . This video game's unique story, characters, dialogue, and environment, combined with the player's ability to choose how to proceed in the game, render it a work of fiction and satire. 
Further, Lohan's claim that her image was used in advertising materials for the video game should also be dismissed. The images are not of Lohan herself, but merely the avatar in the game that Lohan claims is a depiction of her . . . .
In deciding the case, the appellate court relied on a previous case involving the character George Costanza from the television show Seinfeld. Michael Costanza, who had known Jerry Seinfeld at Queens College, claimed that he was the basis for George -- both in name and likeness -- and thus was entitled to damages of $100 million because his statutory right to privacy had been violated. Applying the New York statute, the courts ruled against Costanza even though he -- the “real life Costanza” -- had appeared in a cameo on the show and his actual last name was used. In ruling for Jerry Seinfeld, the courts held that Seinfeld, as a work of fiction, was not advertising or trade under the New York statute and therefore fell outside of its protections.

The Lohan decision stems from a long history of courts narrowly construing the statutory right to privacy to avoid infringing and chilling freedom of speech, not Lohan's reputation as one of the mean girls. This case and earlier decisions simply reflect a strong desire to avoid collisions between the First Amendment and privacy by providing broad latitude to authors to use an individual's likeness, persona, and similar attributes. (This is similar to the balancing that takes place in libel suits involving public figures and officials, where the bias in navigating reputation and free speech is in favor of the latter.) The court appropriately ruled for the defendants because fiction and satire -- even in video games -- would be impermissibly stifled if the New York statute was not construed narrowly. The reality is that art imitates life, and that is fully protected under the First Amendment -- even in a video game played on an Xbox or PS4. 

While the decision is the subject of pending appeals, I expect that New York courts will continue to take a dim view of such claims, and even those that arise from a game based on fast cars will not gain any traction. Under our system of free expression, that is clearly the right direction. 

Perhaps this ruling is also a good reminder to celebrities about how courts applying New York law will respond in the future: If you strive to be famous, don’t complain to us when you are.


  1. Great analysis of an issue that keeps coming up as video games and celebrity both become increasingly profitable. My favorite case involved Vanna White claiming she was owed damages for her 'likeness' depicted as an animated robot. The best judicial opinion (albeit in a dissent from granting rehearing en banc) was Judge Kozinski's:,_Inc./En_banc_Opinion#Opinion_on_Denial_of_Petition_for_Rehearing

  2. I find this stuff fascinating. I hadn't read Judge Kozinski's dissent from the Vanna White case, and I'm grateful to Jeremy for linking to it. I think the only flaw in the judge's reasoning is when he said: "It’s not the robot’s wig, clothes or jewelry; there must be ten million blond women (many of them quasi-famous) who wear dresses and jewelry like White’s. It’s that the robot is posed near the “Wheel of Fortune” game board. Remove the game board from the ad, and no one would think of Vanna White." Whereas the truth is that Vanna White is clearly a robot, and thus the ad actually does appropriate her name/likeness.

    I also have to admit that this quote puzzles me: "The privacy statute remains the exclusive source of this type of privacy right in New York. Courts have continued to restrict recovery to the statute, as opposed to other states that have developed more expansive common law protection." I don't know about you folks, but that sounds vaguely Napoleonic to me.

  3. Probably the importance of the case was how hard can Lindsay Lohan can push to win a monetary compensation here. But the fact about the game is that really do not constitute any well-future-young-people to our society. At home we never get this game to our children (including the major with 16 years now). Yes I have seen what the game can to and how to do it. It's for "mature" as Mr. Sarner indicates, and you can imaging what that means, in all means.

    Lohan was probably looking for money, but she could fight against this kind of game to our future grow men and women.

    Sorry for her, she was not on the right direction.


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