Take Two Interactive Wins Two Publicity Rights Lawsuits Against Lindsay Lohan And Karen Gravano

from the mean-girls dept

Hopefully you will recall that Take Two Interactive had been facing down two lawsuits brought by Lindsay Lohan and Karen Gravano over character depictions in the company's opus, Grand Theft Auto V. Both filed suit over publicity rights and likeness concerns in New York. Lohan claimed that a character in the game that evaded paparazzi after having sex in public and made some oblique references to similar-sounding movies that Lohan had acted in, along with a female character on the game's cover art, were both ripping off her personage. Gravano, meanwhile, claimed that a different character, one which made references to starring in a reality show about mobster wives and evading mob retribution, was ripping off her personage. While both suits failed to address the fictional differences in the characters, which were both composite characters parodying their celebrity archetypes, Take Two attempted to defend itself with those facts and tried to get the case dismissed. Strangely, the court at the time allowed the case to move forward...

...and now the appellate division has reversed course and tossed both cases out.

On Thursday, New York's appellate division first department took a look at both this case as well as one involving ex-Mob Wives star Karen Gravano, who brought a similar lawsuit against Take-Two over Grand Theft Auto V. Gravano had filed a $40 million complaint over the character of "Andrea Bottino," who allegedly used the same phrases the plaintiff did, had a father who was a government informant and had a mutual connection with reality television. Gravano's suit was given a green light by the same trial judge in the Lohan lawsuit.

The court's decision makes it clear that both lawsuits, brought for publicity rights reasons, don't stand up to New York's law. First and foremost, this is because the characters in the game aren't a direct composite of either plaintiff.

Both Gravano's and Lohan's respective causes of action under Civil Rights Law § 51 "must fail because defendants did not use [plaintiffs'] name, portrait, or picture'" (see Costanza v Seinfeld , 279 AD2d 255, 255 [1st Dept 2001], citing Wojtowicz v Delacorte Press , 43 NY2d 858, 860 [1978]). Despite Gravano's contention that the video game depicts her, defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her (see Costanza at 255; see generally Wojtowicz at 860). As to Lohan's claim that an avatar in the video game is she and that her image is used in various images, defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan (see Costanza at 255).

And, second, because the kind of depiction being discussed in these cases is protected First Amendment speech, as should have been obvious from the outset.

Even if we accept plaintiffs' contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs' claims should be dismissed because this video game does not fall under the statutory definitions of "advertising" or "trade" (see Costanza at 255, citing Hampton v Guare , 195 AD2d 366, 366 [1st Dept 1993], lv denied 82 NY2d 659 [1993] [stating that "works of fiction and satire do not fall within the narrow scope of the statutory phrases advertising' and trade'"]; see generally Brown v Entertainment Merchants Assn. , 564 US 786, 790 [2011] ["(l)ike the protected books, plays, and movies that preceded them, video games communicate ideas . . ." and deserve First Amendment protection]). This video game's unique story, characters, dialogue, and environment, combined with the player's ability to choose how to proceed in the game, render it a work of fiction and satire.

Meanwhile, one imagines that the legal teams for both women have been handsomely paid for not informing their respective clients of the futility of these lawsuits from the outset. I mentioned early on in these posts that the legal team for Take Two ought to have been able to stroll into court in their underwear, scream "Parody! First Amendment!" and immediately walk out of the courtroom victorious. That it had to go to much more trouble than that is unfortunate, but it's still good to see the court get this right.


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  • identicon
    Christenson, 6 Sep 2016 @ 3:17pm

    Streisand!

    And then there was the Streisand Effect....

    It is better to shut up and be thought a fool than to open your mouth and prove it.

    For an encore, Take Two should make the Lohan-esque character will be so bubble-headed that she will mindlessly sabotage *every* mission to help her, leading to a Kobayashi Maru type unwinnable scenario.

    reply to this | link to this | view in chronology ]

    • identicon
      Unanimous Cow Herd, 6 Sep 2016 @ 6:24pm

      Re: Streisand!

      For Lowhand, that may have been the end game. Trying to stay relevant and all. Worked for Bulk Bogus.

      reply to this | link to this | view in chronology ]

  • icon
    sehlat (profile), 6 Sep 2016 @ 4:24pm

    I'm not so sure "court got it right" is all that good.

    Remember, legal actions are EXPEN$IVE in the extreme, and bankrupting your enemy (cf. Gawker vs. Mr. Moneybags) creates a very strong "keep your head down" effect not just on the target, but anybody else who might even come close to doing as Take Two did.

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 6 Sep 2016 @ 4:32pm

    In all realities she is still a putz

    reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 6 Sep 2016 @ 5:49pm

    already gone..

    It's not really her fault, she got the Lohan in life....

    reply to this | link to this | view in chronology ]

  • identicon
    Digitari, 6 Sep 2016 @ 5:52pm

    Next

    one of charlie Sheens Ex's joins these to to sue Santa Claus.

    HO HO HO

    reply to this | link to this | view in chronology ]

  • icon
    ImTheRhino (profile), 6 Sep 2016 @ 5:59pm

    New Mission

    "the legal team for Take Two ought to have been able to stroll into court in their underwear, scream "Parody! First Amendment!" and immediately walk out of the courtroom victorious."

    Isn't that a mission on the next DLC?

    reply to this | link to this | view in chronology ]

  • identicon
    Adam, 7 Sep 2016 @ 6:27am

    O M G moment...

    When I first turned on GTA V that girl popped up in the loading screen and I was like O M G, that's totally Lindsay Lohan! Or was it that crack whore I picked up and drove to the alleyway a 1/4 way into the game? Hmm.

    reply to this | link to this | view in chronology ]

  • identicon
    John Mayor, 9 Sep 2016 @ 10:12pm

    THE GRAND THEFT OF LINDSAY LOHAN

    Many years ago I happened upon a book titled, Ends and Means, written by the late author, Aldous Huxley! In it, Huxley explores a concept, that... at the time of my introduction to the work!... I had not personally realized before (at least, in the form, the book addressed!)! And that is, without GOALS (Ends), we will have no FOCUS for our existence!... and!... without the TOOLS/ resources (Means... physical, and informational!) to effect our goals, our realization of our respective goals may be impossible! But, what was most instructive in the work, was that more important than simply setting goals, was our need to choose our goals wisely!... and!... having done so, to then choose ONLY those tools, that would accomplish the realization of our wisely chosen goals!
    .
    And to paraphrase Aldous Huxley on the concept:... "Our ENDS do not justify our use of just any MEANS; as the MEANS we use, will D-E-T-E-R-M-I-N-E T-H-E V-E-R-Y N-A-T-U-R-E of the ENDS produced!" In other words... and and to borrow from a similar theme found in the New Testament of the Bible:... and to paraphrase!... "One REAPS, what one SOWS!"
    .
    And to frame this concept in a simple manner!... if one is wanting to make a CHEESE CAKE, it would be best to use CHEESE, as opposed to using (for example) CHOCOLATE! Now... this isn't to suggest that CHOCOLATE should never be used in conjunction with cheese in the creation of a CHEESE CAKE!... but, simply, to convey the point, that having predetermined to reach the goal (SOUND GOAL!) of the creation of a CHEESE CAKE, the inclusion of any other ingredients than those that would be conducive to achieving that goal, would be to arrive at a goal, that is then OTHER, than the goal of one's choosing (AND!... PROVEN, WISE CHOICE!)! And so!... although it is perfectly fine to create a CHOCOLATE CHEESE CAKE (IF SUCH IS YOUR PROVEN, WISE CHOICE!), it is not-- strickly speaking!-- a CHEESE CAKE! In other words, can the use of CONFLICTING/ CONTRARY means ever be justified, in the attainment of a given goal?... and, for example, the use of VIOLENCE, in the attempt to achieve PEACE!... or the use of a DRUG, to achieve ENLIGHTENMENT! Or!... is the use of CONFLICTING/ CONTRARY means simply COUNTERINTUITIVE/ PARADOXICAL (the latter!... something that appears to be a contradiction, but-- in reality!-- is not!) in many instances?... and must, therefore, be examined more thoroughly, in our effort to PROVE the CONSISTENCY of our means, with the ends we've selected (and for example, our use of SEEMINGLY CONFLICTING/ CONTRARY glaze coloring, when applying coloring to pottery, before firing in a kiln!... the pre-firing raw color of which, will be different than that manifest, after firing!)!
    .
    But, here's the rub!... how can we know with efficient, effective, and sufficient certainty (and compounded, by the reality of the Uncertainty Principle in Quantum Mechanics!) which goals we should strive to attain? And-- likewise!-- how can we know with efficient, effective, and sufficient certainty, which tools we should strive to employ, in our effort to accomplish our respective goals?
    .
    Well!... it turns out, that our inherent Cognitive Psychophysical Pattern Recognition ability (properly formed!... and unadulterated!) is efficient, effective, and sufficient to assess the parameters of both our goals, and the tools required to attain them! And the Cognitive Psychophysical Pattern Recognition ability we employ to realize these parameters, is called, CONSCIENCE (i.e., not the "philosophical meme" by that name!... but the "Cognitive Cortex" by that name!... see the Google result, Scientists Appear to Have Located the Conscience!)!... a feature inhere within our respective Cognitive Psychophysiologies (and in the determination of the just aforenoted scientists, the lateral frontal pole prefrontal cortex, specifically!... the more accurate centrencephalic determination by the late neurosurgeon Dr. Wilder Penfield, backed up by the cognitive facility of the hydrocephalic subjects of the late Dr. John Lorber, and the S.Q.U.I.D.-based evidence tied to the brain's P300 complex, notwithstanding!) that can assess the most subtle aspect of any given goals, and/ or the tools, to reach those goals!
    .
    To sum up... if I place a finger on the surface of a hot pan, and I hold it long enough on that surface, my finger's ability to "sense texture" will be diminished! And such diminishment/ incapacitation, can be the case for every cellular structure that we possess (internal, and external!... thermally, or otherwise impacted!)! To cut to the chase!... if we entertain the use of substances that will "burn (in effect!)" the underlying Cognitive Psychophysiology of that which gives rise to CONSCIENCE, AND CONSCIENCENESS, we will lose the ability to "sense (perceive!)" the parameters of both our goals, and the needed tools to achieve those goals! Like the inability of one who is blind, to "optically sense" the colors, of one's surroundings!
    .
    ATTENTION!:... by this point, some may have mused in reading this prepared text, that I've been alluding to/ leading up to the "subject" of today's topic's past, and/ or present use of alcohol! No!... although!... used in excess, such can have a systemic impact on one's Cognitive functionality! Instead, I'm going to be referring to certain of the "Psychotropic drugs" that Lindsay Lohan has admitted to using!... and, which have been "reportedly" used, by Lindsay! These!... and their consequences!... represent a greater health concern (for anyone!)!... as their effects, are like the damaged and/ or lost tracks, on which trains must run! And without such tracks, the infusion of more trains, is but a "trifling matter (and for example, merely increasing the supply of nutrient rich blood and glucose to damaged, and/ or nonexitent neuronal blood and glucose delivery systems, which have been affected by the very microcirculatory transport of Psychotropic substances!)"!
    .
    This... and unfortunately!... is the present dilemma confronting Lindsay Lohan! BUT YEA, MANY OTHERS WHO HAVE USED-- AND CONTINUE TO USE!-- "C-O-N-S-C-I-E-N-C-E AND C-O-N-S-C-I-E-N-C-E-N-E-S-S ALTERING DRUGS"! And although "neural plasticity" is ever present (i.e., the ability of the brain to regenerate lost neural connectivity!), there is a threshold beyond which, the brain's ability to compensate for damaged and/ or lost Cognitive Psychophysical functionality, is nigh irretrievable!... and so, requiring a MODALITY to "reinstate" that which has been damaged, and/ or lost! AND LET THERE BE NO MISTAKE!... THE USE OF "C-O-N-S-C-I-E-N-C-E AND C-O-N-S-C-I-E-N-C-E-N-E-S-S ALTERING DRUGS" IS N-O-T A "NATURAL PROCESS"!... AND WILL "R-I-P" THE FABRIC OF OUR RESPECTIVE COGNITIVE PSYCHOPHYSIOLOGIES, A-P-A-R-T! AND IS, THEREFORE, NOT TO BE VIEWED/ LOOKED UPON AS SOME FORM OF "NATURAL EVOLUTIONARY PSYCHOBIOLOGY"; BUT RATHER, AN "I-N-D-U-C-E-D PSYCHOBIOLOGY (I.E., OF A PERVERSE, AND UNNATURAL KIND!)"! AND ALTHOUGH "NON-DESTRUCTIVE PSYCHOTROPIC SUBSTANCES" MAY BE SAID TO EXIST IN NATURE (I.E., THAT WILL NOT DAMAGE CONSCIENCE, AND CONSCIENCENESS!... "T-H-E C-E-N-T-E-R O-F W-H-O, A-N-D W-H-A-T W-E A-R-E"!), MANY PSYCHOTROPIC SUBSTANCES WILL ACT TO "D-I-S-R-U-P-T T-H-E N-A-T-U-R-A-L O-R-D-E-R O-F C-O-N-S-C-I-E-N-C-E, A-N-D C-O-N-S-C-I-E-N-C-E-N-E-S-S (E.G., DISRUPT "SHORT TERM MEMORY"!); AND THEREBY, L-O-S-E T-H-E P-E-R-S-O-N OF THE USER, IN THE PROCESS (I.E., UNTIL-- AND IF!-- RESTORATION IS ACHIEVED!)!
    .
    Fortunately!... though!... today, there are both GENETIC (in the form of "induced dedifferentiation of damaged cells", and "induced re-differentiation of induced dedifferentiated damaged cells"!... although, induced dedifferentiation and induced re-differentiation can be had through piezoelectric stimulation!) and DIETARY TOOLS (in the form of Dietary Neurotransmitter Precursors!... see, Dietary influences on the synthesis of neurotransmitters in the brain, by JH Growdon, and RJ Wurtman - Nutr Rev. 1979, May;37(5):129-36!), which can effect the restoration of damaged, and/ or lost Cognitive Psychophysical functionality!... and thereby, providing the means, whereby the ends of Conscience, and Conscienceness, can be restored!... and "behavioral balance", regained! Now... this is not to suggest that having used Psychotropic substances, the user has been forever banned to some kind of psychological "never never land", and that normal day to day functioning is an impossibility!... but, only, that normal day to day functioning has been compromised (and the user has been "re-wired"!), and that the "behavioral balance" of the person so compromised, is in need of "realignment"/ "re-wiring"!
    .
    Lindsay!... and other young souls such as she!... need our prayers!... AND L-O-V-E! And beyond this... they need SOUND "cognitive diagnostics (e.g., Functional S.Q.U.I.D. technoma, and Functional MRI technoma!)", and, "Cognitive modalities (such as those, as aforementioned!)"!
    .
    And re Lindsay specifically (re medical intervention!)!... not to mitigate some "psychic perturbations" caused by some current use of psychotropic drugs, or to mitigate the "general physiological perturbations" caused by some current use of drugs that manifest addiction (as I don't believe either scenario for Lindsay, represents a present danger!)!... but!... to simply remedy damaged, and/ or lost Cognitive Psychophysical functionality that has occurred in Lindsay's past!... the absence of which, has impinged, and impinges on Lindsay's very ability to "generate" full and proper Conscience, and Conscienceness; and thereby, her full and proper behavioral balance! And!... which has led to intrapersonal and interpersonal blindspots (e.g., a failure to assess properly, the latent behavior of others!... and, to foster the necessary responses, to such behavior!), and obsessive compulsiveness!... and which-- in turn!-- has led to her O-C-C-A-S-I-O-N-A-L misuse of alcohol, and more frequent use of tobacco (as a form of self-medication, to address distressing intrapersonal and interpersonal anxiety!)! Although!... and of recent!... her use of alcohol, has been MARGINAL (and her "public feuds", notwithstanding!)! In other words, her "recreational drinking", has been WELL MANAGED!... in contrast, to "certain" of her occasional INTRAPERSONAL and interpersonal spats!
    .
    But!... certain of the "social reading/ interpretation" of Lindsay Lohan!... and, certain of the "social responses" to Lindsay Lohan based on this reading/ interpretation!... is another matter, altogether! And!... is deserving of it's own, MEDICAL INTERVENTION! The "BLAME GAME" is not about restoration!... it's not about healing!... it's about bullying a target/ victim into self-destruction, and/ or, into destroying something, or someone else through proxy (see the Google entry, When Passive-Aggression isn't Very Passive!)! Past excesses, are past excesses!... and an obsessive preoccupation with such, does nothing to remedy any concerns about a soul's immediate situation! What is IMPORTANT to achieve here, is the bringing of a soul into behavioral balance!... and if a soul needs WISE, AND SUBSTANTIVE AID in achieving that balance, then the WISE would indeed be WISE, in facilitating such aid, and balance! And!... words of instruction, alone, may not be a sufficient treatment!
    .
    Lindsay!... wherever you are!... please know!... that you are more valuable, and valued, than all of the gems on all of the planets, circling all of the stars, in all of the galaxies, in the whole of God's created universe! For!... how can any number of gems replace the WONDER, that is a human soul! You are God's little girl!... and His precious, and gracious gift to us!... and to His Kingdom to come! And!... for whom, His Son paid an awesome price! And His love for you shines brighter than all the beacons of His Holy Realm combined! And it was for Him!... and for those who would be blessed through you!... that you were born! And I!... am one so blessed! XO∞!
    .
    Please!... no emails!
    .
    P.S.:... The "product" of Grand Theft Auto V represents nothing more than CYBER BULLYING!... OF WOMEN!... AND, OF AMERICAN CULTURE! They're court "WIN"!... and "SATIRE"!... is a sanctioning of the perpetuation of the "ALT-NET'S" "OLIGARCHOCYBERSOCIOPSYCHOPATHIC" "Nettrollian" cyber abuse of women, and of its view of what constitutes "entertainment", and the "CULTURAL AMERICAN PRIZE" we should all strive to achieve (the Alt-Net, being the "vision", and manipulation by the Alt-Right... and, by the KIN of the Alt-Right!... of the present and future course of the Internet!)!

    reply to this | link to this | view in chronology ]


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