Lindsey Lohan Heads to Court
Lindsey Lohan can’t seem to escape the law, but this time she is heading back to the courtroom where she is the one pursuing the lawsuit. Lohan is suing the makers of Grand Theft Auto for using her “likeness” in the video game’s fifth installment. In her suit, she alleges that the creators based one of their characters, Lacey Jones, on Lohan, without gaining her permission. According to a Forbes article, Lohan stated that the creators incorporated her voice and image, by using Lohan’s fashion line, including similar hats, hairstyles, sunglasses, and jean shorts. The game’s minor character is described as a famous actress who complains about fame and reveals that she is anorexic (Lohan has admitted to having in an eating disorder in a past interview with Vanity Fair). It also features a hotel named the Gentry Manor, a hotel based on a real Los Angeles hotel where Lohan lived for a time.
Like Lohan, many celebrities, and even athletes, use right of publicity laws to prevent others from profiting on unauthorized uses of their names or likeness. In Re NCAA student-Athlete, a college football player sued EA for right of publicity and false endorsement under the Lanham Act for using his image, including his same height, weight, skin tone, hair color, home state, and play style (In Re NCAA Student-Athlete Name & Likeness Litigation 724 F.3d 1268 (9th Cir. 2013) In this case, the Ninth Circuit used a transformative test to see whether the avatar was sufficiently different to obtain 1st Amendment protection. This test, also used in the Third Circuit, looks to whether the new work added significant creative elements so as to be transformed into something more than the original work. The court held that the video game creators replicated the player’s likeness and in doing so, the company sought to “capitalize on the respective fan bases for the various teams and players” knowing that “consumers enjoy and, as a result, purchase more EA-produced videogames as a result of the heightened realism associated with actual players” (In Re NCAA at 1272).
Right of publicity laws were created to allow a person to control the use of his or her image, and generally, video games get a high level of protection because they are works of entertainment. In order for Lohan to prevail, she needs to prove that the Grand Theft Auto creators profited by clearly using her image in a non-parody way, without adding any form of expression. It seems to me that she will have trouble convincing the court that she has been blatantly exploited by the game’s creators.