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.