Zoom, Swerve, Crash! These are effectively the three steps of actress Lindsay Lohan’s and former Mob Wives star Karen Gravno lawsuits against the widely popular action-adventure video game series Grand Theft Auto.
Zoom – Lohan filed suit under New York’s right of publicity statute, arguing that Grand Theft Auto V’s character “Lacey Jonas,” who is continuously portrayed evading paparazzi throughout the game, misappropriated her likeness. Lohan based her allegation off of the presumption that the game made multiple references to her famous Mean Girl’s character, the West Hollywood hotel where Lohan previously resided, and that the video game’s publisher used a model to allude to Lohan’s image and persona using a photograph taken of her in 2007. With respect to Gravano’s case against Grand Theft Auto V, the ex-Mob Wives star filed a $40 million complaint over the game’s character “Andrea Bottino.” Gravano claimed that she had striking similarities with her her virtual avatar from using the same phrases, father’s who were government informants, and ties to reality television
Swerve – Given New York state’s strict publicity statute and Lohan’s previous failed attempts to prevail in such suits, the judge rejected the defendant’s motion to dismiss in March 2016. The same judge who rendered the surprising continuation of Lohan’s case also gave the “green light” for Gravano.
Crash – Despite these rather surprising early victories for Lohan and Gravano, both were short lived. On September 1, 2016, New York’s appellate division delivered a steadfast and fatal blow to Lohan and Gravano’s claims against the video game maker. According to the Hollywood Reporter, the New York Appellate Court held that both “respective causes of action under Civil Rights Law § 51 must fail because defendants did not use [plaintiffs’] name, portrait, or picture.” Specifically with respect to Lohan’s claims, the court concluded that because the video game creator failed to either directly or indirectly refer to Lohan by name, actually use Lohan as a model for the avatar, or use a photograph of Lohan as a basis for the avatar, the “images are not of Lohan herself, but merely the avatar in the game that Lohan claims is a depiction of her.” Therefore, the case was dismissed. The same rationale was used to strike down Gravano’s arguments.
To further add fuel to the already robust fire burning down Lohan and Gravno’s cases, the panel of appellate judges concluded that both suits would ultimately fail even if the avatars’ depictions were close enough to the respective actresses because “a video game does not fall under the statutory definitions of advertising or trade, and that Grand Theft Auto’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.”
Loren Shokes is an Entertainment and Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current third year student at Harvard Law School (Class of 2017).