On December 27, 2017, CBLDF filed an amicus brief with nine other media organizations, asking the New York Court of Appeals to reject actress Lindsey Lohan’s and former Mob Wives star Karen Gravano’s invitation to expand the state’s right of publicity law by broadening New York Civil Rights Law Section 51. The brief states that the “plaintiffs’ proposed reading of this state’s privacy statute would have a profoundly chilling effect on free speech.” That reading would endanger a wide range of comics, including works of nonfiction, fiction, and satire.
Both Lohan’s and Gravano’s lawsuits against Take Two Interactive claimed that their likeness and personas were used to create fictional characters in the popular video game Grand Theft Auto V, which violated their right to privacy. Lohan claimed that the game used her “shoulder length-blonde hair” and “signature peace sign pose” among other details to create the character Lacey Jonas, who Lohan says, emulates her. Gravano claimed it was certain phrases that the character Andrea Bottino used as well as a similarity in backstory to Gravano that created the resemblance.
Initially Take Two Interactive filed motions to dismiss both cases, which were denied on March 14, 2016, by district court judge Joan Kenney. However, on September 1, 2016, the Manhattan Appellate Division unanimously overruled the district court and granted dismissals of both lawsuits. The ruling said both “must fail because defendants did not use [plaintiffs’] ‘name, portrait, or picture.’” New York Civil Rights Law § 51 very clearly outlines that only a person “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” is protected by the law and eligible to sue for damages or an injunction. Furthermore, since it was determined that the game features unique storylines, characters, and locations, it is considered a work of fiction and satire, and therefore is protected by the First Amendment.
Lohan and Gravano were granted the ability to appeal the decision, which is why this case is headed to the highest court in New York. The amicus brief was submitted to advocate for the continuation of the literal interpretation of Section 51 of the N.Y. Civil Rights Law and warn against the disastrous precedent the court would be setting if it expanded the state’s right of publicity law. The brief explains it would undermine the “constitutional right to create and publish fiction and non-fiction material, including both authorized and unauthorized biographies, ‘non-fiction novels,’ political cartoons, photographs, paintings and other works of art, plays, and myriad other creative works. 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.”
CBLDF joins with American Bookseller Association, American Society of Journalists and Authors, Association of American Publishers, Inc., Authors Guild, College Art Association, Dramatists Legal Defense Fund, Freedom to Read Foundation, MPA – The Association of Magazine Media, and The Media Coalition Foundation in filing this brief. Oral arguments will be heard by the New York Court of Appeals on February 7, 2018.
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