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Amicus brief filed in Lohan Grand Theft Auto V suit and some NY observations

January 25, 2018 No Comments »
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An appeal brought by Lindsay Lohan against Take-Two Entertainment and Rockstar Games in relation to the Lacey Jonas character in Grand Theft Auto V has inspired an amicus brief, filed last month, in support of the video game companies.   I am not commenting on the merits of Lohan’s claim here.  I also am not responding to the brief itself, but am just notating a few observations that relate to the New York discussion overall.

The Lohan case is pending in New York.  The amicus brief references New York’s right of privacy statute (New York sections 50 & 51) and indicates that New York’s statute helped the court “dodge a bullet” through its narrow right of privacy provisions.

New York’s legislation, as it shapes New York’s position on the right of publicity and its narrow provisions concerning the right of privacy, is hardly a model for right or privacy or right of publicity legislation (not that anyone has called it a model).  New York’s Sections 50 and 51 puts New York at odds with almost every state in the U.S.  It allows no room for the critical policy reasons behind right of publicity recognition, as distinct from privacy rights.  New York’s right of publicity deficiencies, stemming from the 115 year old legislation (though it has been amended a few times) are, in fact, the source of a lot of problems New York is experiencing.

Addressing New York’s 1903 statute, passed in the aftermath of Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902), Professor J. Thomas McCarthy in The Rights of Privacy and Publicity, s.6:74 says:

“New York …is part of a tiny and dwindling minority of courts which still rejects any common law rights of privacy.  The court refuses to change its 1902 Roberson decision, viewing the common law as a rigid and fixed institution…When the federal courts in New York invited the New York Court of Appeals to join the national trend and recognize some form of common law privacy rights, the invitation was ignored.”

It was New York that gave life to the common law right of publicity in the 1953 case of Haelan V. Topps, 202 F.2d 866, which in turn led to recognition in other states.  McCarthy says “But the right of publicity faced a hostile reception in the state courts in the state of its creation.  Honored abroad, it was viewed with suspicion in New York.”  Clearly, it still is.

In an eye-brow raising abandonment of decades of precedent, the New York Court of Appeals in 1984 abandoned numerous rulings recognizing a common law right of publicity, holding that there is no common law right of publicity in New York and forcing analysis to pass through a statute that was only 36 months out of the 19th Century.  Stephano v. News Group Publications, Inc., 64 N.Y.2d 174 (1984).  McCarthy says about Stephano:  “Erroneously treating the right of publicity as merely a tag-along form of the right of privacy, the court …rejected without serious discussion the concept of a New York common law right of publicity.”  A similar ruling in 1993 deepened New York’s slide into the abyss in Howell v. New York Post Co., Inc., 81 N.Y.2d 1145.  McCarthy says of the 1993 ruling: “Thus, the highest New York court has abided by its position that all privacy and publicity rights must fit in the 1903 statute.  But this makes for a poor fit.  The modern right of publicity simply does not fit comfortably in a century-old statute designed for another time and another kind problem.”

The Lohan amicus brief addresses the transformative use test and the predominant purpose test.  In other settings, the criticism of these tests sometimes seems to almost include the tacit suggestion that judges are incapable of using discernment and applying the law to challenging facts.  To my ears, that sounds like the essence of their calling.  Sure, outlier cases exist, and certain fact patterns will present challenging scenarios in which application of one of these tests may seem a bit forced, but every legal test comes with such dynamics.  The transformative use test has proven to be an adaptive, functional analysis tool in most instances.

Another recurring theme as it pertains to video game litigation as well as draft legislation is that the discussion of whether video games should receive some degree of exempted status is being presented as a fait accompli.   It is as though the discussion point has morphed into an assumption that video games should be treated as categorically protected.  A fair amount has been written on this site about video games and the transformative use test (Discussion Brown Keller EA rulings).   In most instances, video games go to extraordinary lengths, using cutting edge technology, to ensure nothing about the personality is transformed.  Instead, the objective is to represent that person as thoroughly and realistically as possible.  Maybe there are instances in which a video game character should not trigger liability, but to move the entire industry into exempted status is more dangerous and unwarranted than dealing with specific cases as they come up.  Perhaps there is a reason some of the litigation against video game companies has been successful in the court system?

New York has tried many times to amend its position on the right of publicity but, to date, nothing has changed.  It is worth noting that even if the recent legislation under consideration was enacted, New York’s statute would still be among the weakest right of publicity statute in the country.  Why isn’t this seen as a success for the opposition?  New York may be the center of the universe in many respects, but it certainly is not when it comes to the right of publicity.  And while those opposed to New York’s draft legislation foretell of a tidal wave of  litigation and an assault on the First Amendment if passed–basically the first two entries in the anti-right of publicity playbook that has been attempted in every jurisdiction since I’ve been paying attention, though it is effective at scaring legislators–they are ignoring the data from many other jurisdictions that disproves such predictions.

I have no objection to debate, analysis and differences of opinion regarding the right of publicity.  If the right of publicity is to grow and evolve, the doctrine will survive scrutiny and benefit from fair-minded, level-headed discussion.  That said, a conference I recently attended was marked by positions clearly representing the minority viewpoint being presented as the presumptively correct views, as though it was the majority view and supported by case law, statutory authority and scholarship.  Much of the conversation was presented in a manner that what New York was considering is unprecedented and radical, which is simply not true and certainly not fair-minded or level-headed.

I recall an argument from a few years ago in which a lobbying organization on behalf of the First Amendment claimed that if that state passed the proposed legislation, libraries would not be able to post a notice that, for example, J.K. Rowling’s new book would be available on a certain date without facing potential litigation from the author.  Give me a break.

I’m not sure where the Lohan claim will end up.  She probably isn’t the most sympathetic claimant, and I haven’t analyzed the use of the Lacey Jonas character in the game.  If she is unequivocally identifiable from the use, especially if the use in context is clearly based on the game player’s awareness of Lohan, then I’d start the conversation assuming she would have the basis of a claim.

Here is a Lexology link with more details on the Lohan amicus brief:  amicus brief Lohan

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