Actress Lindsay Lohan, 28, is taking legal aim at “Grand Theft Auto 5” publisher Take-Two Interactive (NASDAQ:TTWO) along with subsidiaries Rockstar Games Inc. and Rockstar North for allegedly using her image, likeness and voice without permission.
According to the complaint, Lohan alleges Take-Two Interactive presented her persona in marketing materials, such as the “GTA 5” box cover art and an in-game mission featuring a fictional Lacey Jonas. The complaint alleges the Jonas character is an “unequivocal” reference to Lohan’s Hollywood persona.
Lohan has a litigious history, with a number of lawsuits in the past against the likes of E*Trade Financial Corp. (NASDAQ:ETFC) for one of their ads, and recording artist Pitbull for lyrics that referred to the starlet. The online commentariat seems to view this latest suit as another attempt at publicity, or at least money.
So, does she have a chance?
California copyright and entertainment attorney, Michael Blaha told International Business Times the case may hinge on a couple of points. If Take-Two Interactive explicitly used Lohan’s name in advertising materials or press conferences, it could be a case of the publisher violating her Right to Persona.
“They do allege in the complaint that [Take-Two] actually named her and said that they were going to do a Lindsay Lohan story along with their new version of ‘Grand Theft Auto 5,’” Blaha said. “If that’s true, that’s probably where she has the best case.”
But, the use of Lohan’s name in a fictional context may be protected under first amendment rights. A similar case was brought to the New York Supreme Court by a plaintiff named Michael Costanza against Jerry Seinfeld in 1999. In the case, Costanza alleged Seinfeld, Larry David, NBC and production companies involved in creating the show “Seinfeld” violated New York’s Civil Rights Law sections 50 and 51, invaded his privacy and cast him in a false light.
“The New York Supreme court held that a work of fiction does not constitute advertising or trade for the purposes of the statute that she's suing under,” Blaha said. “That is possibly a hurdle for [Lohan].”
The case was ultimately dismissed in 2001, citing that a work of fiction wasn’t advertising or trade under the law Costanza was suing under.
On the other hand Electronic Frontier Foundation staff attorney, Daniel Nazer, says Lohan’s case is entirely frivolous.
“The kindest thing you could say about it is it’s a publicity stunt,” Nazer said.
Regarding the Lacey Jonas character, Nazer dismissed the character entirely as a generic “troubled starlet.”
“I think even if they had openly portrayed Lindsay Lohan, that it should still be protected by the first amendment. But they didn’t, so the suit is not even a close call,” Nazer added.
But historically, courts haven’t been friendly toward first amendment rights in computer games compared to spectator media such as films.
In the case No Doubt vs. Activision Blizzard Inc. (NASDAQ:ATVI), the courts found in 2011 the use of the band’s likeness in avatars presented in the game “Band Hero” was not transformative and, therefore, not protected under first amendment rights.
Nazer says this particular argument doesn’t make much sense since biographical films are protected under the first amendment.
“If you think about biopics, they often are very faithful to the original person. They actually want to portray the person as accurately as possible, and that should actually be protected under the First Amendment,” Nazer said.
“I think the law generally isn’t protective for speech and particularly the courts have been stingy towards computer games,” Nazer added.
As of Monday, Take-Two had not responded formally to the complaint.
Read Lohan’s full legal complaint below: