Lohan, Mob Wives Right of Publicity Suits to Be Heard By NY Apps. Ct.

Manhattan state Supreme Court Justice Joan Kenney had declined to dismiss the two actions in March 2016. But an Appellate Division, First Department, panel later threw the cases out, finding that no Civil Rights Law violations occurred because the two women were never referred to by name in Grand Theft Auto V, never used as actors and never pictured in photographs. Gravano v Take-Two Interactive Software Inc., 142 A.D.3d 776 (N.Y. App. Div. 1st Dept. 2016).

Robert Pritchard of Manhattan represented Lohan. Thomas Farinella of Manhattan argued for Gravano. Partner Jeremy Feigelson and associate Jared Kagan of Debevoise & Plimpton in Manhattan represented the defendants.

Michael Grygiel, a Greenberg Traurig shareholder who specializes in media and First Amendment law, noted cases like those of Lohan and Gravano reflect the tension between the publicity rights of celebrities and the free speech rights of those seeking to use images commercially that have become widely recognized in popular culture. Grygiel noted there has been a “surge” in such cases recently in New York and in other court jurisdictions, which he attributed to the wide dissemination of cultural images in video games, on social media and other platforms driven by digital technology.

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Joel Stashenko is the Albany Bureau Chief for The New York Law Journal, an ALM sibling of Entertainment Law & Finance.

New York state's highest court has granted leave to appeal to actress Lindsay Lohan and former reality television star Karen Gravano in their suits over alleged misappropriations of their likenesses in the video game Grand Theft Auto V.

But the N.Y. Court of Appeals didn't explain further why it would hear appeals in the two cases, Lohan v. Take-Two Interactive Software Inc., 2017-74, and Gravano v. Take-Two Interactive Software, Inc., 2016-1016. It usually takes about a year for the court to hear oral arguments from the date it allows the appeal.

Both women's suits contend that defendants adopted characters that were unmistakably modeled on their likenesses in violation of their privacy rights under New York Civil Rights Law §51. Lohan has argued that a look-alike model appearing in the game is dressed in a bikini, has shoulder-length blonde hair, jewelry, cellphone and a peace-symbol pose that Lohan said all mimic the image that she has cultivated in her acting career. Gravano, daughter of former Gambino crime family underboss Salvatore “Sammy the Bull” Gravano, argues that the Grand Theft Auto character Andrea Bottino is based on her image, as she appeared on the reality TV show Mob Wives in five of the six seasons the show aired between 2011 and 2016.

Manhattan state Supreme Court Justice Joan Kenney had declined to dismiss the two actions in March 2016. But an Appellate Division, First Department, panel later threw the cases out, finding that no Civil Rights Law violations occurred because the two women were never referred to by name in Grand Theft Auto V, never used as actors and never pictured in photographs. Gravano v Take-Two Interactive Software Inc., 142 A.D.3d 776 (N.Y. App. Div. 1st Dept. 2016).

Robert Pritchard of Manhattan represented Lohan. Thomas Farinella of Manhattan argued for Gravano. Partner Jeremy Feigelson and associate Jared Kagan of Debevoise & Plimpton in Manhattan represented the defendants.

Michael Grygiel, a Greenberg Traurig shareholder who specializes in media and First Amendment law, noted cases like those of Lohan and Gravano reflect the tension between the publicity rights of celebrities and the free speech rights of those seeking to use images commercially that have become widely recognized in popular culture. Grygiel noted there has been a “surge” in such cases recently in New York and in other court jurisdictions, which he attributed to the wide dissemination of cultural images in video games, on social media and other platforms driven by digital technology.

*****
Joel Stashenko is the Albany Bureau Chief for The New York Law Journal, an ALM sibling of Entertainment Law & Finance.