Most recent action
On December 27, 2017, Media Coalition submitted an amicus brief to the New York Court of Appeals (New York’s highest court). The argument is scheduled for February 7, 2018.
The brief urges the court to reject the plaintiffs’ invitation to expand New York Civil Rights Law Section 51, New York’s right of publicity law, beyond the non-consenting use of a person’s name, portrait, picture or voice for advertising or for purposes of trade. It explains that the language of the statute is clear and well-settled and does not apply to characteristics of a person other than those in the statute or to the use of a name, portrait, picture or voice if it is used in artistic work. The brief then warns of the chilling effects on biographies, historical fiction and discussions of current events by authors and playwrights in books, magazines, graphic novels and theater productions.
The amicus brief is joined by American Booksellers Association, American Society of Journalists and Authors, Association of American Publishers, Inc., Authors Guild, College Art Association, Comic Book Legal Defense Fund, Dramatists Legal Defense Fund, Freedom to Read Foundation, and MPA – The Association of Magazine Media.
Summary of the cases
Actress Lindsay Lohan and former “Mob Wives” star Karen Gravano separately sued Take-Two Interactive Software Inc. alleging they violated their right to privacy under New York state law by using their likenesses and images without permission in the game “Grand Theft Auto V.” They claim that during certain optional random events, the player encounters characters that are depictions of them. Specifically, Lohan alleges that the defendants used a lookalike model to evoke her persona and image and “purposefully used Lohan’s bikini, shoulder-length blonde hair, jewelry, cellphone, and ‘signature peace sign’ pose” in one image. In addition, Lohan claimed that her images used in advertising materials for the video game. Gravano argues that the character Andrea Bottino appears in the video game and that Gravano’s image, portrait, voice, and likeness are incorporated in this character. Specifically, Gravano claims that Bottino uses phrases she uses and that her biography mirrors Gravano’s.
Lower court rulings
On March 14, 2016, New York district court judge Joan Kenney ruled separately denying Take Two’s motion to dismiss for a failure to state a claim in each case. Judge Kenney held that both plaintiffs had sufficiently pled causes of action to merit a denial of the dismissal motion.
Appellate court ruling
On September 1, 2016, the appellate division (New York’s intermediate appeals court) reversed the ruling of the district court and granted the motions to dismiss. In the decision, the court held that the plaintiffs’ claims failed under New York Civil Rights Law Section 51 for three reasons. First, the video game did not use their “name, portrait or pictures.” The court noted that the defendants never referred to Lohan or Gravano by name, used their actual names or photographs or used them as actors in the video game. Second, the content of the video game did not fall within the scope of “advertising” or “trade.” The court found the video game to be a work of fiction and satire, which does not fall within New York Civil Rights Law Section 51’s definition of “advertising” or “trade.” So even if the court had accepted Lohan and Gravano’s argument that the characters in the video game are close enough to be considered a representation of the plaintiffs, the claim would still be outside the New York’s right of publicity law. Third, Lohan’s claim that her image is used as “advertising” for the video game fails because a character from the work to advertise the work is deemed to be “incidental or ancillary to the permitted use,” which is excluded from the definition of “advertising” or “purpose of trade” in the law.