Law Professors Amicus Brief Filed Inwards Back Upward Of Take-Two Interactive

Professor Eugene Volokh as well as his Scott & Cyan Banister First Amendment Clinic at UCLA School of Law of late filed an amicus brief on behalf of several constabulary professors inward the Lindsay Lohan v. Take-Two Interactive instance currently pending at the New York Court of Appeals.

Lindsay Lohan sued inward 2014 Take-Two Interactive, the maker of the “Grand Theft Auto V” video game, claiming that it had used her epitome when creating the grapheme Lacey Jonas, run across here as well as here, as well as hence violated her correct to privacy nether New York Civil Rights Law § 51 past times misappropriating her likeness.

Reality exhibit star Karen Gravano filed a similar suit, claiming that the grapheme Andrea Bottino was modeled later her.

Both of these actions failed, every bit Take-Two did non occupation Plaintiffs’ names, portraits or pictures. The game did non refer to Plaintiffs past times name, did non occupation their actual names inward the video game, did non occupation them every bit actors, as well as did non occupation their photographs either, run across here. Plaintiffs accept appealed.

Characters are protected past times the First Amendment

The brief concentrates on the complimentary spoken language issue, contestation that video games are expressive works as well as hence protected past times the First Amendment.

The authors of the brief struggle that “[c]elebrities similar Gravano as well as Lohan are important parts of that “popular culture,” and Take-Two must live complimentary to occupation fifty-fifty their literal names

and likenesses (as was done inward Forrest Gump, for example) to capture the essence of that culture.”

The brief cites  the Comedy III Productions, Inc. v Gary Saderup, Inc., where the California Court of Appeals works life that the correct of publicity “has the potential of censoring important facial expression past times suppressing option versions of celebrity images that are iconoclastic, irreverent, or otherwise endeavour to redefine the celebrity’s meaning.”

New York constabulary exclusively protects against unauthorized occupation of likeness inward trade

Authors of the brief too argued that the New York correct of privacy is to a greater extent than oft than non limited to commercial advertising, as well as does non extend to creative works.  Indeed, New York acre does non recognize a mutual constabulary correct of privacy, exclusively a statutory correct of publicity, as well as New York correct of publicity statute exclusively forbids the occupation without consent of a person’s name, portrait, motion-picture exhibit or vocalisation “for advertising purposes or for the purposes of trade.”

The New York courts accept consistently interpreted the constabulary narrowly as well as the Appellate Division held inward September 2016 that the Grand Theft Auto V video game, “does non autumn nether the statutory definitions of ‘advertising’ or ‘trade.’”

The authors of the brief too struggle that exclusively explicit occupation of a person’s shout out or likeness is protected past times New York correct of publicity statute. Influenza A virus subtype H5N1 mere proffer is non enough.

A recent endeavour to expand the compass of New York correct of publicity law

The New York Legislature is trying to expand the compass of New York correct of privacy past times enacting Assembly Bill A08155. The nib would brand the likeness of an private a personal property, freely transferable.

It defines the “likeness” of an private every bit “an image, digital replica, photograph, painting, sketching, model, diagram, or other recognizable representation of an individual's human face upwardly or body, as well as includes a characteristic.” Influenza A virus subtype H5N1 “characteristic” is defined every bit “a distinctive appearance, gesture or mannerism recognized every bit an identifying attribute of an individual.”

Is a video game protected past times the First Amendment?

The nib has non been enacted. Plaintiffs’ claims may prosper nether this law, or may not, every bit it provides a First Amendment defense. The primary consequence would as well as then no longer live whether the creators of the game indeed used Plaintiffs’ likenesses, but whether a video game is worthy of the protection of the First Amendment.

Plaintiff Gravano seems to accept anticipated this hypothesis, every bit she argues that “a video game that is primarily a commercial production [is] non afforded absolute protection every bit a creative work.”

However, authors of the brief cite the Supreme Court City of Lakewood v Plain Dealer Publ’g Co where the courtroom explained that “the flat of First Amendment protection” of spoken language “is non diminished only because the . . . spoken language is sold rather than given away.”

Stay tuned…

Image courtesy of Flickr user Fred Miller nether a CC BY-SA 2.0 license.