The maker of a popular video game has asked a court to scrap a lawsuit filed by Lindsay Lohan, charging that the actress is pursuing the claim for publicity purposes.
Lohan’s lawsuit lacks merit and represents a misuse of the legal system, Take-Two Interactive Software, the maker of Grand Theft Auto V, asserts in court papers filed August 20 with a Manhattan trial court.
Any resemblance between the fictional character Lacey Jonas in Grand Theft Auto V and Lohan is a form of legally protected artistic expression and not subject to a New York law that prohibits the use of a person’s image for commercial purpose without her consent.
Lindsay Lohan sues 'Grand Theft Auto V' makers over Lacey Jonas character http://t.co/oXcY7xvQ3u #GTAV pic.twitter.com/dX7PpCVVgy
— News18 Tech (@News18Tech) July 3, 2014
Lohan sued Take-Two in July, charging that the company based the Jonas character on her image and lifted events in Jonas’s story from Lohan’s own life in violation of her publicity rights.
Last year the actress lost a similar lawsuit against Armando Christian Perez, a rapper known as “Pitbull,” whom Lohan charged used an arrest and other events from her life in a song lyric without her consent.
Grand Theft Auto, which was released roughly a year ago for use on the Xbox 360 and PlayStation 3 platforms, follows a story set in the fictional city of San Andreas. The game’s characters include Jonas, who asks another character to help her escape the paparazzi.
In its filing, Take-Two points to a line of rulings that separate works of fiction from commercial appropriation of a person’s likeness. “Works of fiction like Grand Theft Auto V cannot constitute ‘trade’ or ‘advertising’ within the meaning of the statute,” Take-Two asserts.
In support of its position, Take-Two points to a line of cases, including a $100 million lawsuit filed in 1999 by Michael Costanza, a New York man who claimed unsuccessfully that creators of “Seinfeld” based the character George Costanza on his life.
“Even had Ms. Lohan not lost the Perez case last year, is case would be frivolous because the principles on which Perez relied are so well-settled,” asserts Take-Two, which asked the court to award sanctions against Lohan for filing what Take-Two contends is baseless claim.
Some experts agree. “There’s a long line of cases in New York that say the use of a fictionalized character does not give rise to a claim,” Evan Gourvitz, an attorney with Ropes & Gray in New York who specializes in intellectual property, told Forbes. “Even the thinly disguised use of a person’s identity is not illegal so long as the actual name of the person isn’t used.”
Though Lohan had pointed to a “side-mission” for the Jonas character that the actress charges mirrors her own life, Take-Two contends that the Lohan is reacting to statements by a blogger and not to representations by the game maker.
Lohan’s lawsuit comes amid claims by celebrities who charge companies with wrongfully appropriating their likenesses. In April, the actress Katherine Heigl sued Duane Reade after the retailer posted on Twitter and Facebook paparazzi photos of Heigl leaving one of its stores. Heigl and the company reportedly have settled the suit for undisclosed terms.