Avid players of the popular video game Grand Theft Auto V may recognize this scenario: your character is tasked with transporting a female celebrity named Lacey Jonas home from where she is hiding in an alleyway. During the mission, you evade the paparazzi while Lacey spouts bons mots like “I’m really famous. I didn’t do anything!” Does this remind you of anyone? Lindsay Lohan certainly thinks so. In a complaint filed on July 1 with the Supreme Court of the State of New York, Lohan alleges that Rockstar Games, the publisher of Grand Theft Auto V, used her likeness without authorization in the creation of the Lacey Jonas character. While Lohan and Lacey certainly share some similarities — both are blonde women, for a start — are they similar enough to convince a court that Rockstar has wrongfully appropriated Lohan’s likeness?
Lohan’s complaint falls under the category of “right to publicity” cases, a claim that is based on a person’s right to have control of where and who is able to depict them in public. The statutory basis for the complaint is Section 50 of the New York Civil Rights Code, which states that liability may be found when “a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person.” Lohan contends that Lacey “incorporate[s] her image, likeness, clothing, outfits … identical events to the Plaintiff’s life … making it unequivocal that the Plaintiff was the intended referent.”
While many states have analogous statutory provisions to New York’s Civil Rights Code Section 50, right to publicity case law is plentiful in California, where famous faces and movie-star mugs abound. Two of the more recent and publicized right to publicity cases involving video games arose in 2012 between NCAA college athletes and Electronic Arts (EA), the publisher of a game unsurprisingly titled NCAA Football. Although, like Lacey Jonas, the characters in NCAA Football didn’t share the names of the players upon whom they were allegedly based, they did share other vital characteristics, including age, weight, height, position, jersey number, college affiliation, hometown, and other, more subjective statistics including speed and strength. The fact that the real and virtual versions of the athletes in question were identical on many levels besides their names, when taken together with the similar contexts in which the real and virtual athletes existed (the football field), led the appeals courts to rule in the athletes’ favour using a transformative use test.
This test examined whether the use of the plaintiff’s likeness was “transformative” in nature: whether it used creative and expressive elements beyond literal recreation of a real person in the game. In both NCAA cases, the courts found that since the virtual football players were almost identical to the plaintiffs except in name and were engaged in the same activity (football) in the same context (college athletics in real-life arenas), EA’s use of the athletes’ likenesses was not sufficiently transformative to form a defence. However, a previous case, Kirby v Sega of America, had the opposite outcome. In that case, Kirby, a professional singer, alleged that Sega had appropriated her likeness in a video game character named Ulala. However, the Court of Appeal, Second Circuit found that there was sufficient difference between Kirby and Ulala for Ulala to constitute a transformative work. The court found differences in dress (retro 60s vs futuristic) and occupation (professional singer vs space-reporter) persuasive in making its decision. Although the outcome of these cases were quite fact-specific, it is at least possible that a court will look to them for guidance, especially since the complaints in the previous cases and the current Grand Theft Auto V case each arose in a video game context.
On the above factors, it seems that Lacey Jonas falls somewhere between the realistic, near-literal depictions of college athletes in their real-life environment and with obvious attention paid to details such as height and weight, and the space age reporter Ulala, so different from Kirby (if she was even based on Kirby in the first place) as to be nearly unrecognizable. Lohan may have a difficult time showing that Lacey is meant to be an unequivocal reference to her, as the “blonde, vapid celebrity hounded by paparazzi” trope is well-established, and Lohan is not the only real-life example. Furthermore, although the setting of Grand Theft Auto V is clearly a city inspired by Los Angeles, the events that transpire during the game are plainly ludicrous, probably sufficiently so to bring them outside the realm of realistic football stadiums and into that of outer-space news agencies. The player can race a stolen supercar through traffic, fight aliens, orchestrate elaborate explosions, and more that many would consider outside the scope of “realistic” depictions of people and places.
Lindsay Lohan has likely never accepted the help of a stranger to escape the paparazzi by tearing through the streets of Hollywood in a stolen sports car. The question for the courts will be: is the depiction of her doing so transformative enough for Rockstar to avoid liability? Or could Lohan successfully argue it is close enough to her actual likeness to infringe her right to publicity?
Adam Chan is an IPilogue Editor and graduate of the University of British Columbia Faculty of Law.