Grand Theft Auto V publisher Take-Two Interactive has responded to Lindsay Lohan’s revised publicity rights lawsuit, claiming in a new motion that it “suffers from even greater defects than the first one” (via The Hollywood Reporter).
The actress originally filed suit against Take-Two and its subsidiary, Rockstar Games, in July 2014. She claimed that her likeness was used without permission as the character Lacey Jonas, a strung-out starlet that featured in several of Grand Theft Auto V‘s side missions. The missions involved driving Jonas home while avoiding paparazzi and snapping compromising pictures of her having sex at Los Santos’ version of the Chateau Marmont hotel where Lohan once lived.
Rockstar and Take-Two originally responded that Lohan’s lawsuit is a frivolous publicity stunt, demanding that Lohan pay for their legal fees as punishment. They claimed in the response that the resemblance between Lohan and Jonas stopped at their superficial similarity as young, blonde actresses. Never one to back down, Lohan (through her lawyers) responded with a new, 67-page complaint that focuses on the use of Jonas’ image in advertising materials, in order to make her legal claim more amenable to the publicity rights laws in New York, where she filed the suit.
In response to this newly expanded complaint, Take-Two and Rockstar have reiterated that it is still entirely frivolous. First, they have invoked the game’s status as a work of art, which is protected from publicity rights claims under New York law. This protection extends to advertising materials relating to said works of art as well. This protection for art is what sank another Lohan lawsuit against the rapper Pitbull for referencing her in a lyric, and Take-Two/Rockstar’s legal representation cites that case for precedent.
Moreover Lohan filed her complaint over a year after materials featuring Jonas were initially published, which puts it outside the statute of limitations in New York.
Former Panamanian dictator Manuel Noriega filed a similar lawsuit against Activision for using his likeness without permission in Call of Duty: Black Ops II. That suit was dismissed by a Los Angeles judge in October 2014 on the grounds that video games are works of art and thus protected under the First Amendment. The growing body of legal precedent establishing games as art does not bode well for Lohan’s suit.
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