A recent New York Court of Appeals decision, Lohan v. Take-Two Interactive Software, Inc. (NY 2018), at the same time expands and limits the right of publicity, which protects the rights of individuals (often celebrities) in the use of their name, likeness, and persona to promote commercial goods.
Celebrity Lindsay Lohan claimed that her right of publicity was infringed when video game maker Take-Two Interactive released an action-adventure video game name Grand Theft Auto V. The game includes a scene where a fictional character named “Lacey Jonas” is encountered, a celebrity whom the player helps escape paparazzi who are pursuing her.
New York’s highest court held that an avatar (i.e., a graphical representation of a person) in a video game could constitute a “portrait” of the person and thus theoretically infringe on the person’s right of publicity. But that court went on to uphold the dismissal of Lohan’s claim, because the video character was not recognizable as her – it was merely a representation of a “modern beach-going young woman” and thus did not infringe her rights.
Lohan provides valuable guidance for companies who use characters in their products or advertisements to avoid right-of-publicity claims. That a character (or digital avatar) is not directly represented to be a celebrity will not by itself be a basis to avoid liability. Rather, a company needs to be careful to ensure that the character is not identifiable as a particular person.
Celebrity endorsements can be extremely lucrative – some celebrities have been reported to have made billions in such endorsements. Most jurisdictions recognize a common-law “right of publicity” – the right to use one’s personality for promotion of commercial products and services.
An exception, however, is New York – New York has rejected any recognition of that right as a matter of common law in the 1902 case Roberson v Rochester Folding Box Co. The New York legislature reacted by passing a statutory right, whereby“[a]ny person whose name, portrait, picture or voice is used within th[e] state for advertising purposes or for the purposes of trade without the[ir] written consent” may maintain a civil claim for damages. N.Y. Civil Rights Law § 51.
In Lohan, the court first considered whether a digital image can be a “portrait.” It held that it can – even though such digital images did not exist when the statute was first passed shortly after Roberson. Nevertheless, New York generally interprets statutes to embrace future technology, and a digital image is no different than an artistic rendering which New York courts have long held can be a “portrait” under the statute.
The next issue is whether the digital avatar – a “portait” – was a “recognizable likeness” of the plaintiff Lohan. Usually that is a question of fact for the jury. But in this case, the avatar was so lacking in identifying features that the claim failed as a matter of law. Rather, the avatar merely depicted “a generic artistic depiction of a ‘twenty something’ woman without any particular identifying physical characteristics.” Such “indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman” simply do not depict a particular person, and thus do not give rise to a claim.
The court also noted that other statutory requirements – that the image be used in “advertising” or in “trade” – might also not be met, but declined to reach those issues.
Lohan should be contrasted with a well-known right-of-publicity case, White v. Samsung Electronics America, Inc. (9th Cir. 1992). There, Samsung commissioned and used an advertisement that depicted the famous game show, Wheel of Fortune. Instead of featuring hostess Vanna White, it featured a robot dressed up in a wig and dress to look like her. The robot then turned the letters on the depicted Wheel of Fortune show in the advertisement, just as Vanna White did in the real game show.
Applying California common law, the Ninth Circuit held that White had a right in her “identity” and that such was infringed because, taking all of the factors together (the dress, the wig, the jewelry, turning letters on a game show board) indicated that it was Vanna White whose identity was being depicted.
White was different for two reasons: (1) California does recognize a common-law right in a person’s “identity,” a vaguer term than the “name, portrait, picture or voice” required by the New York statute; and (2) the features in White clearly called to mind Vanna White, rather than the vague, generic beach-going woman depicted in the avatar in Lohan.
The lesson from these cases is that use of digital and artistic depictions might still raise issues of right of publicity – that is not limited to a photograph or video. But such portrayals will only infringe where the depiction is recognizable as a particular person.