United States: Mean Girls v. The Right Of Publicity: Lessons Learned From The Lohan And Gravano Lawsuits

On September 1, 2016, a New York appellate court ended two closely watched right of publicity lawsuits brought by Lindsay Lohan and Karen Gravano against Take Two Interactive Software Inc. (publisher of Grand Theft Auto) and developer Rockstar Games. Lohan — star of Mean Girls and the 1998 remake of The Parent Trap — and Gravano — a star on VH1's reality television show Mob Wives — alleged that the Grand Theft Auto V: San Andreas video game featured the celebrities' likenesses without their permission in violation of their right of publicity.

These lawsuits represent the latest in a series of recent, highly publicized cases highlighting the tension between a person's right of publicity — the right to control the use of one's name, image, or likeness — and the First Amendment's speech protections. The Lohan and Gravano lawsuits offer a cautionary tale on the importance of jurisdiction and highlight the complex nature of right of publicity jurisprudence here in the U.S.

The Lohan and Gravano Lawsuits

In 2014 through separate lawsuits, Lohan and Gravano sued Take-Two Interactive and Rockstar over their blockbuster hit, Grand Theft Auto V (GTA V). The video game takes place in the fictional city of "Los Santos" — a city based on modern-day Los Angeles — in the fictional state of "San Andreas" (i.e., California). Players control various characters throughout the game as they explore Los Santos, interact with its inhabitants, and embark on approximately 80 main story missions and dozens of optional sidequests. Like its predecessors, GTA V is famous for its satirical portrayal of the real world. From (in)famous landmarks to dueling radio political pundits, sprawling fast food chains to relentless paparazzi, the Grand Theft Auto series has always gone to great lengths to feature (and poke fun at) several aspects of modern society. GTA V is no exception.

Against this backdrop, Lindsay Lohan sued the makers of GTA V, claiming that one of GTA V's characters, "Lacey Jonas," misappropriated Lohan's likeness in violation of New York's right of publicity statute. Lohan alleged that the GTA V character copied Lohan's "bikini, shoulder-length blonde hair, jewelry, cell phone, and 'signature peace sign' pose" without her permission. Lohan also claimed that GTA V's references to Lohan's role in the movie Mean Girls, the West Hollywood hotel where she once lived, and how she deals with paparazzi were all misappropriated aspects of her likeness.

Karen Gravano initiated a similar lawsuit earlier in 2014. Relying on the same statue as Lohan, Gravano alleged that GTA V's "Antonia Bottino" character copied both Gravano's likeness and life story without her permission. Gravano's father, Sammy "The Bull" Gravano, was an underboss in the Gambino crime family who testified against his former mob boss in exchange for a reduced jail sentence. Gravano relocated to the Southwest and eventually starred on VH1's Mob Wives television show. GTA V's Antonia Bottino is also the daughter of a mob-boss-turned-informant, who meets the player in San Andreas as she is being chased by the Gambetti crime syndicate in retaliation for her father's plea bargain. The player later learns that Bottino's father doesn't want her to appear on Wise Bitches, an in-game parody of Mob Wives.

Last month, a New York appeals court disposed of both cases simultaneously. In a terse opinion, the court held that both lawsuits failed because GTA V did not feature Lohan's or Gravano's name, portrait, picture, or voice as required by New York Civil Rights Law Section 51. The court emphasized that, even if the GTA V characters were close approximations of Lohan and Gravano, GTA V never featured the celebrities' pictures, names, or acting talent in GTA V or in advertising materials for the game. In rejecting the "close enough" approach asserted by Lohan and Gravano, the court also noted that video games did not fall under the statutory definitions of "trade" or "advertising" and, thus, could not trigger liability under Section 51. Rather, the court concluded, GTA V was closer to a work of fiction and satire and therefore entitled to First Amendment protection under the U.S. Supreme Court's decision in Brown v. Entertainment Merchants Association (striking down California's 2005 ban on the sale of violent video games to children without parental supervision).

It is unclear whether Lohan or Gravano will appeal to New York's highest court.

The Right Of Publicity: A Diverse Landscape

The Lohan and Gravano lawsuits would have come out very differently had they been heard in another jurisdiction. The right of publicity generally stems from the right to privacy, which is predominantly a creature of state law. Although courts agree that the right of publicity is constrained to some extent by the First Amendment, the extent of that constraint currently depends almost entirely on where the right of publicity claim is asserted.

This has important and often frustrating practical consequences for content creators. In an era where content is disseminated over the internet in all 50 states, in-house legal teams are faced with navigating a complicated patchwork of right of publicity laws. Without clear guidance, content creators are sometimes left puzzled about what they are allowed to say or create. Lohan/Gravano underscores how important it is to consider jurisdiction when asserting or defending against a right of publicity lawsuit.

Generally, the law governing a right of publicity suit will depend on where the plaintiff is "domiciled," which is not necessarily where the plaintiff lives at the time the lawsuit is brought. If the plaintiff is domiciled abroad, it's important to check whether the country of domicile even recognizes a right of publicity. Many foreign countries, such as the U.K., do not. If the plaintiff is domiciled in the U.S., the laws of the domiciliary state will typically control. But some states, like Washington and Indiana, allow right of publicity suits to be brought regardless of where the plaintiff is domiciled.

State right of publicity laws vary immensely. Some states, like New York, have narrow right of publicity laws that only protect the use of a person's name, portrait, picture or voice, and only in the context of trade or advertising. California, by contrast, protects the use of a person's general likeness in addition to their name, portrait, picture or voice in any manner including, but not limited to, advertising. See Cal. Civ. Code § 3344. Some states only provide a statutory right of publicity; others also provide a separate common law right. While many states only recognize a right of publicity during an individual's lifetime, several extend the right beyond death. But even the states that recognize a posthumous right of publicity impose different restrictions and time limitations on those causes of action — e.g., California: 70 years after death; Nevada: 50 years after death; Indiana: 100 years after death.

Courts are similarly divided, especially when it comes to striking a balance between the First Amendment and protecting the right of publicity. The U.S. Court of Appeals for the Second Circuit, for example, errs on the side of protecting speech. In Rogers v. Grimaldi, the Second Circuit considered whether the interest in protecting a celebrity's image outweighed a filmmaker's freedom of expression. It held that the use of a mark or a person's likeness in a fictional work was protected by the First Amendment so long as (1) It had some artistic relevance to the work; and (2) It was not a disguised advertisement. The Rogers test has since been adopted by several courts and continues to represent one of the most speech-protective tests applied in the right of publicity context.

Other courts take a very different approach. The U.S. Court of Appeals for the Ninth Circuit, for example, applies a transformativeness test. In In re NCAA Student-Athlete Name & Likeness Licensing Litigation, the Ninth Circuit considered whether student athletes could prevent Electronic Arts (EA) from using their height, weight, skin color, play position and jersey numbers, but not their names in EA's NCAA Football video game. The court held that the First Amendment did not protect EA's use of the athletes' likenesses because the use was not "transformative" — i.e., it did not add enough creative elements to the athletes' likenesses to change the use into more than a mere reproduction. California courts apply a slightly modified version of this test. In Noriega v. Activision/Blizzard, Inc., No. BC551747 (Cal. Super. Ct. Oct. 27, 2014), for example, a superior court held that the First Amendment protected Activision/Blizzard's use of Manuel Noriega's likeness in Call of Duty: Black Ops II because the game as a whole, not the use itself, was transformative.

But the Ninth Circuit's approach is not internally consistent. In In re NCAA Student, the Ninth Circuit expressly declined to adopt the Second Circuit's speech-protective Rogers test. But the very same day it decided In re NCAA Student, the Ninth Circuit applied Rogers in Brown v. Electronic Arts, Inc., concluding that the First Amendment barred trademark infringement claims brought against EA over its Madden NFL game. Implicit in the court's opinion was the principle that the right of publicity was somehow less constitutionally constrained than trademark rights. But earlier this year, the Ninth Circuit appears to have reversed course. In Sarver v. Chartier, it concluded that the First Amendment protected the makers of the Academy Award-winning film The Hurt Locker from claims that the underlying story and events, which were based on Sarver's life story without his permission, violated Sarver's right of publicity.

Meanwhile, the U.S. Court of Appeals for the Eighth Circuit ignores whether the use or work is transformative and instead focuses on a case-by-case balancing test. In C.B.C. Distribution & Marketing., Inc. v. Major League Baseball Advanced Media, L.P., the court held that use of names and statistics of baseball players for fantasy baseball products was entitled to First Amendment protection, and that protection trumped the players' otherwise-valid right of publicity claims because that information was firmly rooted in the public domain. But in Dryer v. National Football League, the court instead relied on a combination of copyright preemption and First Amendment principles to conclude that video footage used by the NFL did not violate the right of publicity of football players. The U.S. Court of Appeals of the Tenth Circuit uses a similar ad hoc balancing test. See Cardtoons, L.C. v. Major League Baseball Players Assoc.

Some state courts apply their own tests. The Missouri Supreme Court, for example, applies a "predominant use" or "predominant purpose" test. In Doe v. TCI Cablevision, it concluded that a comic book villain based on the name of a famous hockey player was not protected by the First Amendment because the name was used predominantly for monetary, not expressive, purposes. Interestingly, the use here — athlete to super villain — may have been sufficiently transformative under California's tests.

While these examples are by no means exhaustive, they illustrate just how differently courts approach the tension between free speech and the right of publicity. Earlier this year, the U.S. Supreme Court had an opportunity to weigh in but declined to do so in Electronic Arts Inc. v. Davis. Like In re NCAA Student, Davis involved EA's unlicensed use of certain football players' likenesses in one of its video games. By denying EA's certiorari petition, the Supreme Court effectively upheld the Ninth Circuit's holding that EA's use was significant enough to infringe the players' right of publicity. See Davis v. Elec. Arts, Inc. While the Court offered no explanation for its decision, some suspect it refused to review Davis because In re NCAA Student, the precedent upon which Davis was based, was never appealed. But given the lack of uniformity between the federal and state courts, the issue is ripe for the Supreme Court's consideration.

Takeaways and Implications

In the absence of Supreme Court guidance, understanding how to navigate the legal landscape is more important than ever. As illustrated by Lohan/Gravano, the success of a right of publicity claim depends largely on where it is asserted. Content creators need not shy away from their ideas in the face of this uncertainty. Rather, they should familiarize themselves with the right of publicity laws in high-risk jurisdictions so that creative teams and decision makers can make informed choices on how best to proceed.

While it's impossible to divine how the law will evolve in this area, we have some potential clues. The Ninth Circuit's decision in Sarver may suggest a move away from the oft-criticized transformativeness test in favor of a more speech-protective approach like the Rogers test. Given the right case without the procedural complications of Davis, the Supreme Court may yet weigh in on the appropriate balance between the right of publicity and freedom of speech. Alternatively, Congress may decide to create a federal right of publicity cause of action much like it did with trade secrets earlier this year with the Defend Trade Secrets Act of 2016. But with courts so divided and one of our nation's most fundamental rights at stake, change is almost inevitable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
25 Oct 2017, Conference, California, United States

CALOBA is excited to bring you our General Counsel (GC) roundtable event. Our distinguished panel of top legal counsel will share their experiences at the helm of some of the top technology companies.

30 Oct 2017, Seminar, California, United States

This program will address some of the hottest legal and policy topics that online platforms have brought to the fore: free speech, hate speech, fake news, privacy and surveillance, artificial intelligence, augmented reality, changing notions of “ownership” of information and software-enabled consumer products, and the perennial issue of copyright.

8 Nov 2017, Conference, California, United States

Fenwick & West is proud to be participating in PLI’s 49th Annual Institute on Securities Regulation scheduled for November 8-10, 2017 at The Roosevelt Hotel in New York City. The Institute is considered the premier conference, as well as one of the longest running, in the securities law field.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.