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Game Over: New York’s Highest Court Rejects Right of Publicity Claims Against Grand Theft Auto V
2 April 2018
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In the first cases in New York to address right of publicity claims against video games, the Court of Appeals affirmed the dismissal of lawsuits brought by Lindsay Lohan and Karen Gravano claiming that fictional characters in the game Grand Theft Auto V resembled them too closely.
The Court held that whether an expressive work includes the “portrait” of a plaintiff presents a legal gatekeeping question for judges, enabling lower courts to dismiss right of publicity cases at the pleading stage, which will spare content creators from costly and unnecessary discovery.
The Appellate Division decision affirmed by the Court continues a long line of New York precedent holding that expressive works such as books, movies, television, and plays are not “advertising” or “trade,” and therefore cannot give rise to right of publicity violations.
David H. Bernstein
Jared I. Kagan
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