Dr. Andreas Leupold LL. M. (UT)
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Dr. Andreas Leupold LL. M. (UT)
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Lindsay Lohan sues the makers of GTA 5 for using her likeness in the game

July 24, 2014

Hollywood actress Lindsay Lohan - of „scary movie“and most lately „2 Broke Girls” fame - has criticized the makers of the most successful video game of all times, “GTA V” since December last year for using a supporting character by the name of “Lacey Jonas” that has been modeled after her likeness in the game. Perhaps the fact that the game grossed US $800 million in sales within 24 hours following its release spurred the actress to finally file suit against Take-Two Interactive Software Inc. and Rockstar Games, the makers of the game in the Supreme Court of New York in June 2014. In her lawsuit, Lohan is complaining that Rockstar Games “has knowingly and without her prior consent violated her privacy by appropriating her likeness by including her portraits and “screen persona” in its video games” and is asking for punitive damages as well as a share in the defendant´s profits derived from this infringement.

Considering Lohan´s track record in other court proceedings that weren´t successful, it has been suggested that her lawsuit might be dismissed entirely. But is this really likely to happen? Whoever believes that Lohan´s move is only a publicity stunt that does not stand a chance to succeed, should better think again. Lohan´s complaint is based on Sections 50 and 51 of Article 5 of the New York Code that protects the privacy of individuals. Sec. 50 provides that “A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person … is guilty of a misdemeanor.” According to Sec. 51 NYC, “any person whose name, portrait, picture or voice is used for advertising purposes or for the purposes of trade without the written consent first obtained may sue and recover damages for any injuries sustained by reason of such use”.

What is worse for the makers of the game is that Art. 5 Sec. 51 of the NYC also grants the individual concerned the right to prevent and restrain the use of his/her name, portrait, picture or voice for commercial purposes, so Rockstar may have to become a game changer all by itself if the New York Supreme Court finds that the character of Lacey Jonas is not so fictitious after all. While a decision of the New York Supreme Court would only affect sales of the game in the United States, national courts in the European Union may follow suit and prevent the further distribution of the most successful video game ever. In Germany, which is home to 23 million active gamers and Europe´s largest gaming market, courts repeatedly held that the likeness of an individual may principally not be exploited for commercial purposes without his/her prior consent (see e.g. LG Hamburg, ZUM 2003, 689, that prohibited the use of Oliver Kahn´s likeness in the computer game “FIFA Soccer World Cup 2002”and  OLG München, ZUM 2003, 139 that awarded damages to the tennis player Boris Becker for the unauthorized use of his picture for advertising purposes), so the law is not so different here and that despite the distance.

While the outcome of Lindsay´s suit cannot be predicted, the lesson is already clear: Game developers and publishers must carefully ponder the question whether they can model game characters after real life persons. And apart from privacy rights and the commonly acknowledged  right to one's own image, the creators and distributers of video games must also ensure that they have all rights needed to use third party content such as graphics, pictures and music in their games.

 

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