In July, the Brand Protection Blog reviewed potential “right of publicity” claims that might have been brought by celebrities whose wax “look alikes” appeared in Kanye West’s “Famous” music video. That analysis largely focused on California’s Celebrity Rights Act. A September 1, 2016 ruling from a New York State appeals court may demonstrate important differences between New York and California law governing publicity rights. Order (Supreme Court, New York County), Gravano v. Take-Two Interactive Software, Inc. et al. (151633/14) and Lohan v. Take-Two Interactive Software, Inc. et al. (156443/14 ).
The GTA V Cases
The cases involved “Grand Theft Auto V”—the latest installment of the wildly popular video game franchise. The game—which takes place in a fictional American city—involves approximately 80 main story “missions” and optional random events, including encounters with other characters (avatars).
In their cases, celebrities, Lindsay Lohan and Karen Gravano (from TV’s “Mob Wives”) claimed that avatars in the games violated their rights to privacy by misappropriating their likenesses in violation of New York Civil Rights Law § 51. Although it contains some exceptions, that law generally states that: “Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action . . . and may also sue and recover damages for any injuries sustained by reason of such use . . .”
Ms. Gravano alleged that the character “Andrea Bottino” in the game incorporated her image, portrait, voice and likeness, as well as several events from her life. Ms. Lohan claimed a violation of § 51 by alleging that:
defendants used a look-alike model to evoke Lohan’s persona and image. Further, Lohan argues that defendants purposefully used Lohan’s bikini, shoulder-length blonde hair, jewelry, cell phone, and “signature peace sign’ pose” in one image, and used Lohan’s likeness in another image by appropriating facial features, body type, physical appearance, hair, hat, sunglasses, jean shorts, and loose white top. Finally, Lohan argues that defendants used her portraits and voice impersonation in a character that is introduced to the player in a “side mission.”
The NY Court of Appeals Dismisses the Suits
The trial court denied defendants’ motions to dismiss, but the appellate court dismissed both plaintiffs’ complaints. The appeals court found that the plaintiffs did not meet the requirements of § 51 because the game and the defendants never referred to either plaintiff by name, never used their actual names in the game, never used either woman as an actor for the game, and never used a photograph of either plaintiff. In short, there was no use of either plaintiff’s name, portrait or picture, as listed in § 51.
The appeals court also found that the video game, as a work of fiction, was not within the statutory definitions of “advertising” or “trade.” Instead, First Amendment protections (also discussed in the post on the Kanye West video) prevailed.
Finally, the appellate court also dismissed Ms. Lohan’s claim that her image was used in advertising materials for the game. As was the case with the game itself, the advertising materials used the game’s avatar, rather than images of Ms. Lohan, so the § 51 claim could not proceed.
A Different Result on a Different Coast?
As we noted in our Kanye West series, the right of publicity is governed by state law and therefore varies from state to state. The result in this case compared to the outcome of Keller v. Electronic Arts, another recent case involving the use of a celebrity’s likeness in a video game, might demonstrate how important these differences can be.
In Keller, the 9th Circuit held that a video game which realistically depicted plaintiff and former NCAA quarterback, Sam Keller, playing football did not meaningful transform his identity, and therefore was not entitled to First Amendment protection as a transformative use. 724 F.3d 1268 (2013). California’s Court of Appeals reached a similar decision in No Doubt v Activision Publishing, Inc., 192 Cal.App.4th 1018 (2011) (Band Hero’s realistic depiction of No Doubt playing other groups’ songs was not sufficiently transformative.)
On the other hand, the facts of this case bear some important similarities to those in Kirby v. Sega of America, Inc., 144 Cal.App.4th 47 (2006). In that case, Keirin Kirby, lead singer of the retro-funk group, “Deee-Lite,” claimed that Sega violated her rights of publicity when it released the video game Space Channel 5 whose main character, “Ulala,” was allegedly based on Kirby. Sega’s game was set in outer space, and Ulala was a reporter “investigat[ing] an invasion of Earth by dance-loving aliens who shoot earthlings with ray guns, causing them to dance uncontrollably.” 144 Cal.App.4th at 52.
Like the plaintiffs in the Grand Theft Auto cases, Kirby claimed that in creating its fictional character, Sega borrowed her distinctive look, including red and pink hair, platform shoes, brightly colored formfitting clothes, and short skirts. However, the California Court of Appeals, held that even assuming Sega used Kirby’s likeness, the First Amendment provided a complete defense, because notwithstanding “certain similarities,” Ulala was “more than a mere likeness or literal depiction of Kirby.” 144 Cal.App.4th at 59. The court noted that fictional, Ulala had a “physique, primary hairstyle and costumes, and dance moves” that differed from Kirby’s. “Moreover,” the court held:
the setting for the game that features Ulala—as a space-age reporter in the 25th century—is unlike any public depiction of Kirby…. Taken together, these differences demonstrate Ulala is `transformative,’ and respondents added creative elements to create a new expression” such that the First Amendment barred Kirby’s claim.
Id. Therefore, while Ms. Gravano’s and Ms. Lohan’s claims might have survived a motion to dismiss had they been brought under California’s broader statutory and common law provisions protecting a person’s rights of publicity, it is not certain those claims would have prevailed. It is possible a court would conclude that the avatars in Grand Theft Auto V were not literal depictions of the two celebrities and taken together with the game’s “unique story, characters, dialogue and environment” created a “new expression” meriting First Amendment protection.