Ten media organizations Wednesday called on the New York Court of Appeals to reject Lindsay Lohan's and Karen Gravano's appeal in the Grand Theft Auto V lawsuit against publisher Take-Two Interactive, warning a loss could erode First Amendment rights.
The organizations argue that the request by actress Lohan and reality TV star Gravano to broaden the state's right of publicity law would violate the First Amendment rights of journalists, filmmakers, writers, artists and others. The Court of Appeals will hear oral argument in the cases on February 7, 2018.
Lohan sued Grand Theft Auto V publisher Take-Two Interactive in 2014, saying that Rockstar Games based the character Lacey Jonas in the game on the actress. The complain alleges that the developer "incorporated her image, likeness, clothing, outfits, [Lohan's] clothing line products, ensemble in the form of hats, hair style, sunglasses" without her permission.
But the New York Supreme Court ruled in 2016 that Lohan didn't inspire the design. Attorneys for both Lohan's case and a similar one by Gravano appealed the decision with the New York Court of Appeals where they continued to argue that characters in the game are based on their "image," “persona,” and “likeness,” and that such use, without their consent, violates their rights.
In today's amicus brief, the media organizations put aside the question of whether the characters in the game were based on the two and instead argue that even if they were the game wouldn't violate their rights.
"New York’s narrow right of publicity law only applies to advertisements and commercial use, not, as Lohan and Gravano contend, to any work for which the creator (or distributor) seeks compensation," according to the group. The brief also points out that state law only prohibits the use, absent consent, of a person’s “name, portrait, picture, or voice,” and does not prohibit the use of a person’s “image,” “persona,” and “likeness.”
In detailing their argument, the group points out that rewriting the law to extend protection to Lohan and Gravano in this case would violate the First Amendment and could harm creative works in the future. If the law is changed, then “in developing a fictional character who bears some personality traits of real persons (as virtually all fictional characters do), an author would reasonably be concerned that if the character is seen as having one trait too many in common with a real person, he or she might be found liable.” These changes would cause the censorship of a broad range of First Amendment protected works, according to the brief, which was signed by the American Booksellers Association, American Society of Journalists and Authors, Association of American Publishers, Inc., Authors Guild, College Art Association, Comic Book Legal Defense Fund, Dramatists Legal Defense Fund, Freedom to Read Foundation, MPA – The Association of Magazine Media and Media Coalition Foundation.
“Lohan and Gravano are asking the court for a radical and unprecedented rewriting of New York's right of publicity statute, which would violate the First Amendment rights of publishers, playwrights, authors and artists,” David Horowitz, executive director of Media Coalition, Inc., wrote in a prepared statement. “It would allow anyone to veto the use of his or her name or persona in works of historical fiction, biographies, works of art or other First Amendment protected speech."