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Surprise! Law Profs Don't Support Lindsay Lohan in Grand Theft Auto Appeal

By George Khoury, Esq. on January 11, 2018 | Last updated on March 21, 2019

An amici brief, written by more than a baker's dozen of law school professors, was filed in support of Take 2 and Rockstar Games in the appeal filed by Lindsay Lohan over the use of her likeness/image without her permission in Grand Theft Auto V.

The case, which was filed back in 2014, has a rather storied past. Basically, Lohan and Karen Gravano claim that characters in the popular video game are based on them. Unfortunately for the pair, the New York state trial court did not agree that it mattered, and dismissed their claims. Their appeal followed.

Details of the Claim

The two arguably famous claimants argue that their storied histories are the basis for the two characters, and particular "looks" of theirs were appropriated for the game character. While the images and content from the game do bear a striking resemblance and commonality with the starlets' backgrounds, there are significant differences, not to mention the fact that the game is rather satirical (albeit violent, among other criticisms).

Law Profs Driving Creativity

In the amici brief, the professors explain that borrowing pop culture figures is a common literary technique that artists are permitted to do thanks to the First Amendment. In fiction, it is common to include real public figures, including celebrities, as minor characters. As the profs note, artists are not limited to making up whole new fantastical worlds every time they write a fictional story. For the most part, using the real world as the backdrop for fiction, and including well known real world celebrities as fictionalized minor characters, does not violate the law, in New York at least. In New York, only the use of a person's image for commercial advertising is prohibited without permission.

Generally, people understand that even when a celebrity is depicted as themselves in a fictional world, even a fictional real world, it is not really the celebrity (unless it actually is the celebrity, a la Matt LeBlanc in Episodes). Withstanding satire is one of the few downsides to fame. However, there are definitely some uses of people's images (including celebrities) that will violate the law.

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