A Hollywood actress, known for early career hits such as “Mean Girls” and “The Parent Trap,” (and more recently for rehab trips and legal problems) Lohan alleges that game makers Take-Two Interactive Software Inc. and Rockstar Games created the character "Lacy Jonas" with an “unequivocal” resemblance to Lohan and her clothing line.
“The portraits of the Plaintiff (Lohan) incorporated her image, likeness, clothing, outfits, Plaintiff’s clothing line products, ensemble in the form of hats, hair style, sunglasses, jean shorts worn by the Plaintiff that were for sale to the public at least two years,” the suit claims.
The suit was filed under the little known “right of publicity” legal doctrine, an evolving statute that prevents unauthorized commercial use of a person’s character traits and likeness, according to the Legal Information Institute at Cornell Law School.
Unlike copyright law, which is written in federal statutes, rights of publicity are state-law based, according to Emily Billig, an attorney who specializes in trademark and copyright law at Ober|Kaler in Maryland. Only half of all American states expressly recognize a right of publicity.
Lohan’s case may constitute trademark infringement as well, as her persona represents a line of goods and services, Billig said.
Her suit comes on the heels of a class-action suit filed by National Football League and National Collegiate Athletic Association players against video games that modeled characters on their height, weight, jersey number, and position on field.
In the past two months, game maker Electronic Arts has settled suits representing thousands of professional and collegiate football and basketball players, according to the Associated Press, and the company agreed to pay $40 million in damages.
Unlike Lohan’s case, the NCAA players are not the typical well-known celebrities who file suits under a right of publicity.
“This suit was pretty ground-breaking… an outlier,” said Billig. “Usually when someone’s image is used, the person has to be known enough to be profiled for commercial use. But these were students who simply played on a high-profile team,” Billig said.
The NCAA class-action suit shows that the application of the right to publicity can further evolve to encompass non-celebrities. Billig also acknowledged that the high profile lawsuit in the NCAA case might bring larger attention to filing other claims against video game makers.
“I’m not sure that the average person is well-versed in this area… this case might make them them more aware,” Billig said.
Both the Madden sport series and “Grand Theft Auto V” are best-selling video games with perennial sales.
To date, Electronic Arts has sold more than 100 million copies of Madden games, according to CNN. Grand Theft Auto V reported sales of $800 million on its first day and more than 33 million copies sold since then, the AP reported.