ALBANY (CN) – Attorneys for Lindsay Lohan and “Mob Wives” star Karen Gravano pushed New York’s highest court Wednesday to revive claims about the unsanctioned use of their likenesses in “Grand Theft Auto V.”
With Chief Judge Janet DiFiore presiding, the New York Court of Appeals heard 50 minutes of oral arguments from lawyers representing Lohan, Gravano and Take Two Interactive Software, the owners of Rockstar Games.
“The legal rule here that we are asking this court to continue enforcing, the rule that creative works simply are not trade or advertising, is a rule that has been bedrock in this state and recognized by creators all around this country,” Jeremy Feigelson, an attorney for Take Two and Rockstar Games, argued.
“It’s the rule that brings us ‘Forrest Gump,’ it’s the rule that brings us the George Steinbrenner and Soup Nazi characters on ‘Seinfeld,’ it’s the rule that brings us the novel ‘Primary Colors,’ it’s the rule that allows Andy Warhol to paint celebrities and museums to advertise those paintings,” the Debevoise & Plimpton attorney continued.
Feigelson characterized “Grand Theft Auto V” as “a creative work of fiction” and “a satire of modern life in Southern California.”
He defended the disputed transition screen images purported to be Lohan as “table setters” that tell players of the game: “Here’s the party girl who got in a little trouble.”
Feigelson went on to paint the screens as introducing the player “to the world of Los Santos, this incredibly rich visual and fictional world they’re about to experience.”
“Some might call it mind-numbing,” Judge Paul Feinman responded dryly.
Citing First Amendment concerns, Feigelson pointed out: “Lindsay Lohan is essentially arguing that she owns the peace sign in this case, and I think Winston Churchill would be surprised to hear that.
“These images are generic cultural types, they are not the plaintiff,” Feigelson insisted.
Judge Eugene Fahey asked Lohan and Gravano’s attorneys to point out where commercial exploitation occurred with their clients’ likenesses.
“So is every caricature then a question of fact that must go to a jury?” Fahey pressed. “That would mean every avatar in every video game could essentially become a jury question as to whether or not it is commercial exploitation.”
Lohan’s attorney, Frank Delle Donne from the Pritchard Law Firm, argued that still transition screen images purported to be Lohan were incorporated as advertising material “on the disc covers, the packaging, DVD covers, they’re on billboards.”
“They’re definitely being used for commercial purposes,” the attorney added. “I don’t think there’s any issue to that.”
Lohan’s original suit claimed the character Lacey Jonas copied her “bikini, shoulder-length blonde hair, jewelry, cell phone, and ‘signature peace sign’ pose,” and included references to her personal history without her permission.
Gravano, a star of the reality show “Mob Wives” and daughter of mobster Sammy “The Bull” Gravano, had similar complaints. Joining the suit, she claimed the character Antonia Bottino depicted her in the game and made references to her background as the daughter of a mobster who became a government witness.
Thomas Farinella represents Gravano.
Delle Donne, a Brooklyn-based lawyer who punctuated his arguments with expressive hand gestures, claimed that it was a matter of fact that the images in two of the “Grand Theft Auto V” transition screens were his client.
“They are her portraits, her digital portraits,” Delle Donne declared, “intentionally and deliberately made to be her.”
Lohan sued Take-Two Interactive Software and Rockstar Games in 2014 over “Grand Theft Auto V,” which hit the market a year earlier.
Though the trial court refused to dismiss, an intermediate appeals panel reversed in 2016, saying the “video game does not fall under the statutory definitions of ‘advertising’ or ‘trade.’”
The lower court also found that the images in the advertising were not actually Lohan “but merely the avatar in the game that Lohan claims is a depiction of her.”
Lohan and Gravano’s cases “must fail,” that court added, because “Grand Theft Auto V” did not specifically use their “name, portrait or picture.”
Lohan and Gravano appealed the dismissal of the two lawsuits to the New York Court of Appeals.