Gaming

Video Games & The Case for Limiting the Breadth of Privacy Law

Grand Theft Auto V
Written by David Switzer

The world of IP law got another taste of Hollywood recently when Lindsay Lohan filed suit against Rockstar Games and its parent company, Take 2 Interactive, for allegedly infringing on her rights of publicity in the game “Grand Theft Auto V” (GTA-V).  According to cnn.com, the complaint alleges that “the portraits of (Lohan/ LiLo) incorporated her image, likeness, clothing, outfits, her clothing line products, ensemble in the form of hats, hair style, sunglasses, jean shorts worn by Lilo that were for sale to the public at least two years.”

Sometimes called privacy rights or rights of personality, LiLo claims that Rockstar violated her rights of publicity, which includes the right to commercially use her likeness.  Specifically, her argument alleges that Rockstar created character Lacey Jonas for the game GTA-V based off Lohan’s recognizable and commercially valuable likeness and personality without her permission.  The Lohan v. Rockstar case presents an interesting platform to explore the interplay between rights of personality, copyright, and trademark, and how these doctrines may or may not co-exist or conflict.

I will reserve judgment on who should prevail on the merits of this case.  More importantly, the instant case illustrates a situation where federal copyright and trademark law should limit the breadth of local privacy law, specifically as applied to the name and likeness doctrine.  Some important questions this case raises in my mind are: how broad do we, as a society, want rights of personality to be?  What are the problems with how the doctrine has been applied, and how can this inform future policy regarding privacy rights?

Unlike most intellectual property rights, state law rather than federal law governs personality rights.  Lohan argues that Rockstar appropriated her likeness and personality for the Lacey Jonas character.  Most often, this principle comes into play in the field of advertising or merchandizing of commercial goods.  However, taken to the extreme, the doctrine can allow a person to prevent the commercial use of any identifying aspect of their identity.

In my opinion, rights of privacy, as explored in the Lohan case, have been applied in a way that present a potential conflict with federal copyright law and could better be addressed by trademark law.  Additionally, because state law governs this common law right, the breadth of the right varies from state to state, and inconsistent standards are applied to test privacy infringement.  Because varied standards are applied, potential defendants are left without a reliable way to project their liability and steer clear of infringing activities.

The Lacey Jonas character, allegedly based off Lohan, bears certain objective similarities to the troubled actress, to be sure.  For example, the subject character is depicted running from the paparazzi, holding a mobile phone, and wearing outfits allegedly modeled off of items from Lohan’s clothing label.  There are other similarities, including, most alarmingly, the front cover of the game, depicting Lacey Jones in a bikini pose largely resembling a recognizable photo of Lohan.

LiLo’s legal arguments rest on the name and likeness branch of personality rights doctrine.  In its most legitimate form, the name and likeness doctrine is applied when a defendant uses a plaintiff’s image or name to promote a product.  For example, a lingerie company using Giselle Bundchen’s image in an advertisement to sell its product without her permission.  The legal legal theory, which rests on tort principles, recognizes that should be unlawful for a defendant to appropriate the goodwill associated with the plaintiff’s endorsement of the defendants product without the plaintiff’s permission.  Such permission usually comes with a significant price tag.  With Lohan, her legal team will likely argue that GTA-V appropriated her likeness and personality in a way that caused consumers to believe that she is endorsing the product.

Regarding mistaken endorsement rationale described above, this cause of action can be easily and effectively dealt with through the federal trademark regime.  The Lanham Act contemplates that a person’s likeness or personality can be recognizable and commercially valuable, and the Act allows one to prevent commercial exploitation of their recognizable traits to endorse a product or merchandise (See 15 U.S.C. § 1125).  Therefore, with respect to false endorsement, it is unclear what extra protection is afforded to individuals through state law rights of privacy that are not already afforded through federal trademark law.

However, unlike the situation above where a consumer might believe Giselle is endorsing a product with which she is not in fact affiliated, GTA-V did not actually portray Lohan in the game.  While the character may possess certain similarities with Lohan, there are no specific character traits that point unequivocally to the character being based off of Lohan.  Illustratively, unlike a mistaken endorsement/ commercial appropriation situation, the present case is more akin to a situation where a company publishes an advertisement that features Giselle in a photo, with her permission.  Then, a famous artist, say Andy Warhol, sees the advertisement and becomes inspired.  The artist subsequently paints a famous painting that looks like Giselle. GTA-V, like that hypothetical painting of Giselle, is a piece of art, protected by federal copyright law.

Therefore, it appears what Lohan seeks to do is to extend the commercial appropriation doctrine to hold that GTA-V’s violated Lohan’s personality rights with its portrayal of her because the Lacey Jonas character increased the desirability, overall enjoyment, and/or aesthetic or artistic value of the game.  This application of the name and likeness doctrine does not fit squarely within the traditional notion of the activity, such as with mistaken endorsement.

In my opinion, this is an overlooked an undesirable extension of the name and likeness commercial appropriation doctrine, and this extension creates some problems in its application.  In application, the analysis requires the court to determine the commercial value of a person’s contribution to a product.  In this case, the product is a work of interactive audio-visual art—namely, GTA-V.  Essentially what the right of personality’s commercial appropriation invites the trier of fact to do is to assess the value of the art overall versus the plaintiff’s potential value to the artistic piece to make a determination whether there has been a violation of personality rights.  The more valuable the plaintiff’s contribution (i.e. the more famous they are) and the less valuable the piece of art itself, the more likely it will be that infringement of personality will be found.  However, how does a person (or a judge trained in the law) make a determination about the value of artistic contribution?

Copyright, a Constitutional protection, is governed by federal law.  “It should not be forgotten that the Framers intended copyright itself to be the instrument of free expression.”  (Harper & Row v. Nation Enterprises 471 U.S. 539, O’Connor at 558).  The use of celebrities in art as cultural icons of contemporary society can often be valuable creative expression.  Whether or not potential plaintiffs argue that their rights are violated depends largely on the plaintiff’s subjective assessment of the aesthetic value of the art.  For instance, Warhol (referenced above) famously painted portrayals of Elvis Presley and Marilyn Monroe.  Assuming arguendo that Warhol did not have permission from his subjects, these works of art are highly valued cultural pieces (and likely, the subjects themselves would have enjoyed the pieces).  In my interpretation, because certain pieces/ artists are artistically admired, fewer of the potential right of personality lawsuits will be brought against the creators of this art. In the real world, the result of the application of the doctrine is to create an undesirable (from a legal perspective) dichotomy between highbrow art and lowbrow art.  This dichotomy serves to stifle art that, as in the case of GTA-V, can be popular, but is not as appreciated by a society’s artistic culturati as a piece that might be found in a fine art gallery.

In this instance, it could also be argued that the portrayal of the Lacey Jonas character in the game is more akin to a parody of Lohan, intended to make jest at America’s Hollywood obsessed culture in general, rather than the use of Lohan’s image to increase the value of the game.  As one commentator noted “it’s not clear if Jonas is meant to be a direct play off of Lohan or a caricature of Hollywood stars in general, but the Grand Theft Auto series has never been a stranger to parodying anything, from businesses, to television shows, to people.”

Furthermore, as a society that has enshrined the value of creative expression in the Constitution, this doctrine serves to constrict this expression overall.  From a policy standpoint an important question is raised: if we, as a society of creators, aren’t going to create art based off of famous people, then who can we base our art off of?

One of my favorite paintings is “Washington Crossing the Delaware,” by Emanuel Leutze. Imagine that society had been deprived of this valuable historical artifact because Washington or one of the other individuals depicted in the painting viewed that it violated their right of publicity.  It seems absurd that a historical figure could prevent an artist from basing a piece off of him, but also very sad that Americans would not have been able to enjoy this piece through the generations.  Nevertheless, that was exactly the result in the case Martin Luther King Jr. Center For Social Change, Inc., v. American Heritage Products Inc, where a Georgia court prevented a company from selling sculptures of Dr. MLK Jr.

In the MLK case, the court thought it was important that the defendant was selling many copies of the sculpture, and in the eyes of the court that fact distinguished the MLK sculpture from works of art such as the paintings of Washington or Elvis described above.  While there are many distinguishing facts between the MLK case and the Lohan case (the MLK sculpture probably having a stronger case for violating personality rights), in both instances the court is invited to make a distinction between high culture art and low culture art. It is hard to see the court coming to the same conclusion had the sculpture been a limited production of museum quality by a famous artist.  However, simply because the art is mass produced, that does not turn a piece of artistic expression into a violation of a person’s privacy rights.  The same analogy applies to the instant Lohan case.

GTA-V was a wildly successful game, earning nearly a billion dollars in revenue in its first 24 hours of sales.  With a defendant with such deep pockets, the lawsuit has the potential to be extremely lucrative for the embattled Lohan.  However, in viewing this case, we should not lose sight of the potential impact ruling could have on the creative community and the consuming public, who both benefit from a legal system that allows for robust creative expression of all types of art, not just the kind that hangs in galleries.

Photo via RockstarGames.com

About the author

David Switzer

David G. Switzer, Esq., is the Director of Business Affairs at Creative License, a leading music licensing and talent procurement firm in New York. David is a graduate of University of Miami’s School of Law and University of Miami’s Frost School of Music, where he earned his Juris Doctor and Masters in Music Business and Entertainment Industries, respectively. David has a passion for writing, specifically on the topics of copyright and other intellectual property law as they pertain to the technology, music, and entertainment industries. He has also written extensively in the field of IP, including authoring an eBook while in law school entitled “The State of Intellectual Property in Latin America: Legal Trends, Economic Development, and Trade.” Prior to graduate school David received his Bachelors of Science in Business Administration with Concentrations in Law and Entrepreneurship from Boston University. David can be contacted at 561-866-6493 or davidgswitzer@gmail.com.

Leave a Comment