Media Organizations File Amicus Brief Calling on New York Court of Appeals Not to Rewrite New York Right of Publicity Law

Groups Urge the Court to Protect the First Amendment Rights of Booksellers, Publishers, Authors, Librarians, Playwrights and Artists.

 

FOR IMMEDIATE RELEASE

January 3, 2017

 

CONTACT: David Horowitz, Media Coalition, 212-587-4025 x3, horowitz@mediacoalition.org

 

NEW YORK, NY – Ten media organizations have filed an amicus brief in the New York Court of Appeals, the state’s highest court, calling upon the court to reject the requests of actress Lindsay Lohan and reality TV personality Karen Gravano to broaden New York’s right of publicity law in a manner that would violate the First Amendment rights of authors, artists, journalists, publishers, booksellers, filmmakers, librarians and others.

In the cases before the Court of Appeals, Lohan v. Take Two Interactive and Gravano v. Take Two Interactive, Lohan and Gravano claim that avatars in the videogame Grand Theft Auto V are based on their “image,” “persona,” and “likeness,” and argue that such use, without their consent, violates their rights.  But, the media organizations’ amicus brief argues, even if the avatars were based on Lohan and Gravano that would not violate their rights.  New York’s narrow right of publicity law only applies to advertisements and commercial use, not, as Lohan and Gravano contend, to any work for which the creator (or distributor) seeks compensation. In addition, the amicus brief argues, the right of publicity law only prohibits the use, absent consent, of a person’s “name, portrait, picture, or voice,” and does not prohibit the use of a person’s “image,” “persona,” and “likeness.”

The brief sets forth in detail the legal reasons why rewriting the law to apply to speech that is not advertising or marketing would violate the First Amendment.  It also gives numerous examples of biographies, works of fiction, theater and art that could not be published or produced without the consent of the subject if the court changes the law.  Expanding the law as Lohan and Gravano request would even chill creative works not based on a specific individual.  If the law is changed, the amicus brief demonstrates, then “in developing a fictional character who bears some personality traits of real persons (as virtually all fictional characters do), an author would reasonably be concerned that if the character is seen as having one trait too many in common with a real person, he or she might be found liable.”  These changes would cause the censorship of a broad range of First Amendment protected works.

The amicus brief, filed December 27, was signed 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, MPA – The Association of Magazine Media and Media Coalition Foundation.

“Lohan and Gravano are asking the court for a radical and unprecedented rewriting of New York’s right of publicity statute, which would violate the First Amendment rights of publishers, playwrights, authors and artists,” said David Horowitz, executive director of Media Coalition, Inc.  “It would allow anyone to veto the use of his or her name or persona in works of historical fiction, biographies, works of art or other First Amendment protected speech.”

The Court of Appeals will hear oral argument in the cases on February 7, 2018.

The amicus brief was written by Michael A. Bamberger and Richard M. Zuckerman of the law firm Dentons US LLP, general counsel to Media Coalition, Inc.

 

A copy of the brief is available here: http://mediacoalition.org/files/litigation/lohangravanoamicus.pdf

Information about the case is here: http://mediacoalition.org/lohangravano-v-take-two-interactive-software-inc/