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Lindsay Lohan Claims "Grand Theft Auto V" Game Violates Privacy Right Under NY Civil Rights Law -- Defendants Say Au Contraire

Lohan, the "celebrity actor," sued the maker of "Grand Theft Auto V," the popular video game, alleging that the game includes an unauthorized character based upon her and events from her life, in alleged violation of Section 51 of the NY Civil Rights Law, though it does not use her name.  Lindsay Lohan v. Take-Two Interactive Software, Inc. et al., Index No. 156443/2014, filed June 2, 2014 (N.Y. Sup. Ct.).  She seeks unspecified damages and injunctive relief.

Section 51 prohibits "uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the write consent of such person ....  New York law does not recognize a common law right of privacy or publicity.

On August 20, 2014, the defendants moved to dismiss Lohan's entire complaint and asked the Court to award attorney's fees and costs as sanctions on the ground that the claim is frivolous.  Defendants attack Lohan's complaint on numerous grounds -- that none of the Section 51 prohibitions were violated; that it does not protect a "life story"; that the First Amendment bars the claim entirely, as the video game is an expressive work of art; and that the complaint is time-barred.  

Defendants particularly rely upon another Lohan suit under Section 51 which sought damages and an injunction against the singer "Pitbull" based on the use of her "name and characterization" in the song "Give Me Everything."  Lohan v. Perez, 924 F.Supp.2d 447 (E.D.N.Y. 2013).  The court dismissed Lohan's claim "because the Song is a protected work of art ...," and also dismissed her claims of unjust enrichment and intentional infliction of emotional distress.  

Defendants seeks sanctions, alleging that Lohan and her counsel should have known that her "Grand Theft Auto" claim was baseless based on her loss on the same theory in Perez.  The court in Perez declined to award fees against Lohan, concluding that her claims were not frivolous, but did impose fines on her counsel for "plagiarism" in court papers and making a false representation to the court.  

Lohan's response to the motion to dismiss is due by September 2, 2014.  Stay tuned.