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.