Media Groups Say Lindsay Lohan 'GTA V' Lawsuit Could Erode First Amendment Rights
Lindsay Lohan and Karen Gravano's lawsuit filed against Rockstar Games and Take-Two Interactive could have a greater impact than expected, if they were to be considered.
The American Booksellers Association, American Society of Journalists and Authors, and eight other media organizations believe that approving their appeal in the "Grand Theft Auto V" ("GTA 5") lawsuit against publisher Take-Two Interactive and developer Rockstar Games could erode First Amendment rights.
For those who do not know, Lohan and Gravano are suing the two on the grounds that their privacy rights under New York Civil Rights Law Section 51, which protects those "whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained," were violated.
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Lohan sued the two companies in 2014 claiming that they used her image, likeness, clothing, and clothing line products and even her "signature peace sign pose" for the character of Lacey Jonas in "GTA V" without her permission. Gravano, on the other hand, claims that the character of Antonia Bottino used her catchphrases and her backstory.
The New York Supreme Court sided with Take-Two and Rockstar in 2016, but Lindsay and Gravano's attorneys appealed the decision with the New York Court of Appeals.
In an amicus brief they filed on behalf of the two companies, the media groups explained that approving their appeal could have a negative impact on free speech in a much greater scale.
The groups argue that it is not even about the "GTA V" characters being based on them, but how there remains no violation even if they were.
Plaintffs' proposed reading of this state's privacy statute would have a profoundly chilling effect on free speech. Were the Court to accept Plaintiffs' contention that Defendants' incorporation of characters allegedly based on them into a highly creative video game implicates their rights under Section 51 of N.Y. Civil Rights Law, that novel construction of the statute would seriously impair amici's constitutional right to create and publish fiction and non-fiction material ... It would substantially undermine this state's traditional strong protection for free speech, including for expressive works that draw inspiration from real people and events.
They went on to say:
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.
The brief also points out that state law only prohibits the use, absent consent, of a person's "name, portrait, picture, or voice," and not their "image," "persona," and "likeness" as Lohan and Gravano argue.
If the court were to side with Lohan and Gravano, it would mean that "developing a fictional character who bears some personality traits of real persons (as virtually all fictional characters do)" would get an author or any other creative in legal trouble. Ultimately, it could cause censorship of unimaginable degree.
David Horowitz, executive director of Media Coalition, Inc., one of the signatories in the amicus brief along with Association of American Publishers, Inc., Authors Guild, College Art Association, Comic Book Legal Defense Fund, Dramatists Legal Defense Fund, Freedom to Read Foundation, and MPA – The Association of Magazine Media, said in a statement:
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. 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.
