On Thursday, New York's appellate division first department took a look at both this case as well as one involving ex-Mob Wivesstar 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.
"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," states today's opinion. "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. 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."
The panel of appellate judges adds that even if the depictions were "close enough," the claims still fail because a "video game does not fall under the statutory definitions of 'advertising' or 'trade,'" and that Grand Theft Auto'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."
This isn't the first time Lohan learned that New York's law doesn't protect her likeness in a non-advertising context. See the lawsuit she filed when her name was included in a song by the rapper Pitbull.
And her allegations that the video game publisher put the image of the blond character that looked like her on merchandise like T-shirts and coffee mugs doesn't save her lawsuit either. The appellate decision finishes: "The images are not of Lohan herself, but merely the avatar in the game that Lohan claims is a depiction of her."
This article was originally published by The Hollywood Reporter.