It’s a bit of a convoluted case. In 2014, entertainer Lindsay Lohan sued Take Two, alleging that its latest installment of the Grand Theft Auto franchise — famous for its crass parodies — used the star’s likeness without permission. That likeness extends beyond the Lacey Jonas character, who bears some physical resemblance to Lohan: the suit also contends that Grand Theft Auto V uses her clothing designs and voice, which is historically muddier territory where fair use arguments are concerned.
Well, it seemed a New York Supreme Court judge has decided Lohan’s suit had enough merit to proceed, because she filed a motion to that effect yesterday.
“The application to dismiss […] is denied,” Judge Joan Kennedy writes in the motion. “The ‘documents’ relied upon by movants [the defendants, Take Two], to assert that the images in question are not that of the plaintiff [Lohan], is vehemently denied and factually contested by the plaintiff. These factual disputes require a determination by the trier of facts and said documents cannot, at this juncture, support an application to dismiss.”
Or in layperson’s language: it’s one side’s word against the other’s, so this needs to move along to the next stage for us to actually figure out who’s right.
Take Two’s lawyers have argued to this point that the suit lacks merit, saying that Lohan filed it “for publicity purposes.” (Right, because the amount of attention an entertainer like Lohan could get from dry legal briefs vastly outweighs what she could get just by mugging for a camera on TMZ.) They’ve also tried to argue that Lohan waited too long after the game’s release to sue, and that the suit is invalid because Grand Theft Auto‘s developer, Rockstar Games, is based in the United Kingdom. Judge Kennedy waved aside these and other arguments, noting Rockstar has offices in New York as well, and that the timeliness issue is immaterial in this context.
Take Two’s defense has 30 days to file an amended motion to dismiss, otherwise the suit will proceed to a “preliminary conference” in May.
This may all sound tedious, but issues of fair use and performer likenesses in games have come up before. In a 2013 case, a US court ruled that the likenesses of college athletes in Electronic Arts’s sports games were not protected under the First Amendment. And while it’s comparatively easy to argue that an EA sports game isn’t a work of criticism or parody, it’s not certain the fair use argument would cover Grand Theft Auto V either, if the alleged infringement extends to Lohan’s copyrighted designs or samples of her voice. And taken together, these two cases could set a precedent for how we treat human likenesses in games, at least in a US courtroom.
Kris Ligman is the News Editor for ZAM. For sandbox crime games, they vastly prefer Saints Row anyway. Gush about Johnny Gat with them on Twitter @KrisLigman.