INDEX NO.

156443/2014

FILED: NEW YORK COUNTY CLERK 01/23/2015 06:36 PM

NYSCEF DOC. NO. 88

RECEIVED NYSCEF: 01/23/2015

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
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LINDSAY LOHAN,
:
:
Plaintiff,
:
:
:
:
- against :
:
:
TAKE-TWO INTERACTIVE SOFTWARE,
:
INC., ROCKSTAR GAMES, ROCKSTAR
:
GAMES, INC. and ROCKSTAR NORTH,
:
Defendants.
:
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Index No. 156443/2014

Hon. Joan M. Kenney
IAS Part 8
Motion Sequence 002

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION

TO DISMISS THE AMENDED COMPLAINT AND FOR SANCTIONS

DEBEVOISE & PLIMPTON LLP

Bruce P. Keller
Jeremy Feigelson
Jared I. Kagan
919 Third Avenue
New York, New York 10022
(212) 909-6000
bpkeller@debevoise.com
jfeigels@debevoise.com
jikagan@debevoise.com
Counsel for Defendants
January 23, 2015

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TABLE OF CONTENTS
Page

PRELIMINARY STATEMENT .....................................................................................................1

ARGUMENT...................................................................................................................................2
I.

Ms. Lohan Cannot State A Right Of Publicity Claim Under New York Law.....................2
A.

Artistic Works Like GTAV Are Absolutely Protected........................................... 2

B.

It Is Irrelevant Whether The GTAV Characters Resemble Ms. Lohan, And

The Purported Resemblances Do Not Support A Claim ........................................ 5

C.

The Purported Use Of Ms. Lohans Life Story Is Not Actionable...................... 6

II.

The Complaint Is Time Barred ............................................................................................7

III.

The Complaint Pleads No Grounds For Personal Jurisdiction Over Defendant

Rockstar North .....................................................................................................................8

IV.

Sanctions Are Appropriate...................................................................................................9

CONCLUSION..............................................................................................................................12

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TABLE OF AUTHORITIES
CASES
Ali v. Playgirl, Inc.,
447 F. Supp. 723 (S.D.N.Y. 1978) ........................................................................................4, 5
Amsellem v. Host Marriott Corp.,
280 A.D.2d 357 (1st Dept 2001) ..............................................................................................9
Banham v. Morgan Stanley & Co. Inc.,
178 A.D.2d 236 (1st Dept 1991) ..............................................................................................9
Bennett v. Towers,
14 Misc.3d 661(Sup. Ct. Nassau Cnty. 2014)..........................................................................11
Bondar v. LASplash Cosmetics,
No. 12 Civ. 1417(SAS), 2012 WL 6150859 (S.D.N.Y. Dec. 11, 2012)....................................7
Cohen v. Herbal Concepts, Inc.,
63 N.Y.2d 379 (1984) ................................................................................................................6
Costanza v. Seinfeld,
279 A.D.2d 255 (1st Dept 2001) ....................................................................................2, 4, 11
Etheredge-Brown v. Am. Media, Inc.,
13 F. Supp. 3d 303 (S.D.N.Y. 2014)..........................................................................................8
Geary v. Town Sports Intl Holding, Inc.,
21 Misc.3d 512 (Sup. Ct. N.Y. Cnty. 2008) ..............................................................................8
Hart v. Electronic Arts, Inc.,
717 F.3d 141 (3d Cir. 2013).......................................................................................................3
Hoepker v. Kruger,
200 F. Supp. 2d 340 (S.D.N.Y. 2002)....................................................................................3, 4
In re Winston,
243 A.D.2d 638 (2d Dept 1997) .............................................................................................11
Lohan v. Perez,
924 F. Supp. 2d 447 (E.D.N.Y. 2013) ............................................................................. passim
Martin v. Daily News L.P.,
121 A.D.3d 90 (1st Dept 2014) ................................................................................................8
Onassis v. Christian Dior-NY,
122 Misc. 2d 603 (Sup. Ct. N.Y. Cnty. 1984) ...........................................................................6

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Toscani v. Hersey,
271 A.D. 445 (1st Dept 1946) ..................................................................................................6
Waters v. Moore,
70 Misc. 2d 372 (Sup. Ct. Nassau Cnty. 1972)..........................................................................6
Yenom Corp. v. 155 Wooster Street, Inc.,
33 A.D.3d 67 (1st Dept 2006) ................................................................................................11
STATUTES
New York Civil Rights Law 51 .......................................................................................... passim
OTHER AUTHORITIES
3 SMOLLA & NIMMER ON FREEDOM OF SPEECH 24:4 (2009) ........................................................4

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Defendants Take-Two Interactive Software, Inc. and its subsidiaries Rockstar

Games, Inc. and Rockstar North (together Take-Two) submit this reply in support of
their motion to dismiss the Amended Complaint and for sanctions.
PRELIMINARY STATEMENT
Regardless of the volume of paper the Plaintiff submits to this court, the law in
New York is well settled: Creative works like Grand Theft Auto V are protected
without exception against right of publicity claims like Ms. Lohans. That absolute
rule compels both dismissal and sanctions. Ms. Lohans response is clearly wrong as a
matter of law for the following reasons:

The transformative use test that Ms. Lohan invokes simply does not
exist under New York law. The only standard to be applied in this case is
New Yorks statutory and First Amendment bar against right of publicity
claims directed at creative works.

Because GTAV is absolutely protected, it is irrelevant whether Ms. Lohan

resembles any character in the game. But Ms. Lohan herself concedes she
is, at best, only a referent or inspiration for the characters she sues
over. This underscores another reason why her claim must fail: GTAV
does not use her actual name, portrait, picture or voice, which is
necessary to state a claim.

The statute of limitations plainly applies to the Stop & Frisk and Beach
Weather images because that content was published more than a year
before suit was filed and has not been republished for purposes of the
law. Similarly, even if Defendants had invoked Ms. Lohans name
regarding the Escape Paparazzi mission (which the public record confirms
they did not; Ms. Lohans name was used only by a lone independent
blogger), Ms. Lohans suit is untimely because it was filed over a year
after that statement was made.

Defendant Rockstar North plainly is not subject to jurisdiction in New

York. Ms. Lohans arguments to the contrary are based on made-up facts
found nowhere in the Amended Complaint.

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The core principles that compel dismissal here have been explained to Plaintiff
repeatedly first by the Perez court, then by Take-Two on three separate occasions (first
before she served her original complaint; again when Take-Two moved to dismiss that
complaint; then again in this motion to dismiss the Amended Complaint). Yet Plaintiff
persists in ignoring the law and wasting the Courts resources. This case should be
dismissed and sanctions should be imposed on Ms. Lohan and her counsel.
ARGUMENT
I.

Ms. Lohan Cannot State A Right Of Publicity Claim Under New York Law
A.

Artistic Works Like GTAV Are Absolutely Protected

Artistic works like GTAV simply cannot form the basis for right of publicity
claims under either New York law or the First Amendment. See Defendants opening
brief (Def. Br.) at 13-15. The case law makes it clear that no further analysis is
required or appropriate.
GTAV is a widely acclaimed creative and expressive work of fiction that parodies
our society. Lacey Jonas is a fictional character that appears briefly in GTAV, as do
the two visual artworks at issue, Beach Weather and Stop and Frisk. In addition to
appearing in the game itself on transition screens while portions of the game load into
the computer memory, these artworks appear on the physical game discs, game cover,
and in the games strategy guide. Def. Br. at 7-11. Ms. Lohans claim thus fails as a
matter of law whether considered purely under Section 51, or under constitutional free
speech principles. See Costanza v. Seinfeld, 279 A.D.2d 255, 255 (1st Dept 2001)
(affirming dismissal of complaint asserting Section 51 claims based on allegations that

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defendants used plaintiffs name, likeness and persona to create a character for the
television program Seinfeld, because works of fiction do not fall within the narrow
scope of the statutory definitions of advertising or trade (emphasis added)); Lohan
v. Perez, 924 F. Supp. 2d 447, 454 (E.D.N.Y. 2013) (dismissing Ms. Lohans Section 51
claim based on a song that used her name in the lyrics; Courts interpreting the New
York Civil Rights Law have concluded that pure First Amendment speech in the form of
artistic expression . . . deserves full protection, even against [another individuals]
statutorily-protected privacy interests. (quoting Hoepker v. Kruger, 200 F. Supp. 2d 340,
350 (S.D.N.Y. 2002) (alterations in original)).
Faced with settled law that fully supports dismissal of her case at the pleading
stage, the Plaintiff argues that New York actually follows a different rule: the
transformative use test, borrowed from copyright law, under which First Amendment
concerns are weighed against an individuals right of publicity on a case-by-case basis.
Affirmation in Opposition (Jan. 8, 2015) (Opp. Aff.) at 16. This transformative use
test is not recognized in New York, which instead follows the rule of absolute protection
for creative works. Ms. Lohans only support for the transformative use test is a single
Third Circuit case, Hart v. Electronic Arts, Inc., 717 F.3d 141, 149 (3d Cir. 2013), cert.
denied, 135 S. Ct. 43 (2014), which applied New Jersey law and involved very different
facts.
Ms. Lohan is equally wrong when she suggests that because GTAV is sold for
profit it qualifies as trade or advertising use under Section 51. Opp. Aff. at 10.
Numerous cases have made clear that artistic works like GTAV are not trade or

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advertising under Section 51 whether or not they are sold for profit. In the Perez case
Ms. Lohan made this same argument, which was explicitly rejected by the court when it
summarily dismissed Ms. Lohans right of publicity claim. 924 F. Supp. 2d at 455 (The
fact that the Song was presumably created and distributed for the purpose of making a
profit does not mean that plaintiffs name was used for advertising or purposes of
trade within the meaning of the New York Civil Rights Law.); Def. Br. at 14. That Ms.
Lohan makes the same argument in this case underscores the frivolousness of her claim.
It is also irrelevant that the Beach Weather and Stop and Frisk artworks have been
displayed on billboards and posters to promote the game (Opp. Aff. at 18-19), because
GTAV is a fully protected and non-actionable expressive work. Under New York law,
using portions of the work to promote it is as protected as the work itself. See Costanza,
279 A.D.2d at 255 (affirming dismissal of Section 51 claim where [t]he alleged
commercial use of the [fictional] character in advertising was incidental or ancillary to
the permitted use [in the creative work being advertised]); Hoepker, 200 F. Supp. 2d at
351 (newsletters, brochures and billboards used to promote art exhibit were protected
from Section 51 claim because even though they were used for advertising purposes
specifically, to increase patronage of the museum and the exhibit that use was related to
the protected exhibition of the [art exhibit] itself.).
Ms. Lohans citation to Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978),
does not salvage her claim. That case, which involved a pornographic full-frontal nude
drawing of Muhammad Ali, is well-recognized as an aberration limited to its extreme
facts. 3 SMOLLA & NIMMER ON FREEDOM OF SPEECH 24:4 n.23 (2009) and

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accompanying text. The court in Ali neither discussed nor applied the settled rule that
artistic works fall entirely outside Section 51. Instead the court stated without any
acknowledgment or analysis of the New York rule that creative works are absolutely
protected that the drawing qualified as trade or advertising. No New York court
ever has cited Ali as support for upholding a Section 51 claim against a creative work of
any kind.
B.

It Is Irrelevant Whether The GTAV Characters Resemble Ms. Lohan,

And The Purported Resemblances Do Not Support A Claim

Ms. Lohans argument that she is a referent (Opp. Aff. at 5, 9, 17, 20, 23) and
inspiration (id. at 22, 23) for three different characters in GTAV is irrelevant because
New York law absolutely protects creative works like GTAV. The Plaintiffs argument
also is an admission that Ms. Lohan cannot state a claim. Even if GTAV was a trade
purpose, the statute expressly requires the use of the plaintiffs actual name, portrait,
picture or voice, not use as a reference or inspiration. Because Ms. Lohans name,
portrait, picture or voice plainly are not used in the Lacey Jonas random event, the
Beach Weather artwork or the Stop and Frisk artwork, her claim must fail. Def. Br. at
18-19. The characters at issue differ from Ms. Lohan in a multitude of significant ways.
See Def. Br. at 27 n.5 (itemizing differences). These characters also depict common
elements of society and pop culture that Ms. Lohan has no proprietary interest in e.g.,
young blond women, paparazzi chases, and the popular V hand gesture in photographs.
The GTAV characters clearly are not a literal depiction of Ms. Lohan that constitute a
portrait, picture or use of her voice as required under the statute.

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Ms. Lohan cites cases that involve advertisements, not creative works, and which
confirm that reproduction of a persons actual identity is the legal standard (not being a
referent or inspiration). See Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379 (1984)
(magazine advertisement used actual photographs of the plaintiffs); Onassis v. Christian
Dior-NY, 122 Misc. 2d 603, 612-13 (Sup. Ct. N.Y. Cnty. 1984) (magazine advertising
campaign for Christian Dior clothing line used look-alike model to create the illusion
that plaintiff had actually posed for, and agreed to appear in, the challenged ad). Even if
GTAV were a trade use, because the Plaintiff acknowledges that the characters are not
photographic or literal images of herself, she simply has no claim under Section 51.
C.

The Purported Use Of Ms. Lohans Life Story Is Not Actionable

Ms. Lohan concedes that fictionalized works that parallel a persons life story do
not give rise to a cause of action under [Section 51]. Opp. Aff. at 20 n.3. Instead she
argues, without any support, that this is some sort of special rule that only applies if a
plaintiffs name, portrait or picture are not used. Id. No New York court has ever limited
the protection for fictionalized works in that way, however, and to do so would be
completely inconsistent with settled law. Def. Br. at 21-23; Toscani v. Hersey, 271 A.D.
445, 448 (1st Dept 1946) (To so construe the statute [to apply to life story rights] would
broaden its scope far beyond anything warranted by the meaning that would ordinarily be
ascribed to the words name, portrait or picture.); see also Waters v. Moore, 70 Misc.
2d 372, 375 (Sup. Ct. Nassau Cnty. 1972) (Neither is the test whether an individuals
identity can be ascertained from his involvement in the actual event or by reference to

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external sources. (citing Toscani)). The lack of any case support whatsoever
underscores the frivolousness of the Plaintiffs claims.
II.

The Complaint Is Time Barred

Ms. Lohan does not dispute that the purported announcement of her name in

association with a look-a-like side mission (by a blogger, and not by Take-Two), was
made a year and a day before the original Complaint was filed. Def. Br. at 23. Thus
even if Take-Two had made that announcement (which it did not), the claim falls outside
the one-year statute of limitations.
Similarly, there is no dispute that the Beach Weather and Stop and Frisk artworks
were released a year and eight months before the original complaint was filed. Id. There
is also no dispute that they were widely used in many different formats related to
publicizing GTAV, including posters and advertisements at least twelve months before
the original complaint was filed. Id. There is no merit to Ms. Lohans argument that the
republication exception to the one-year statute of limitations applies to the Beach
Weather and Stop and Frisk artworks. All the uses of those images cited by Plaintiff as
supposed republications on the cover of GTAV, on the game discs, and on the
transition screens are (i) identical or nearly identical to the earlier uses and (ii) were
intended to reach the same target audience: consumers of video games. See Def. Br. at
23-24; Bondar v. LASplash Cosmetics, No. 12 Civ. 1417(SAS), 2012 WL 6150859, at *8
(S.D.N.Y. Dec. 11, 2012) (the same photograph of plaintiff used to advertise different
cosmetics products 14 months apart, with only minor alterations, was intended to reach

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the same target audience consumers of cosmetics and was not republication),
reconsideration denied, 2013 WL 28391 (S.D.N.Y. Jan. 2, 2013).
The cases Ms. Lohan cites applying the republication exception (Opp. Aff. at 24)
are inapplicable to the facts of this case. See Etheredge-Brown v. Am. Media, Inc., 13 F.
Supp. 3d 303, 307 (S.D.N.Y. 2014) (It is plausible to infer [that republication of news
articles online for free that were previously sold in hard copy at a cost] is done as part of
a conscious effort to reach a new audience.); Martin v. Daily News L.P., 121 A.D.3d 90,
104 (1st Dept 2014) (no republication existed where deleted website content was
re-posted to the same website); Geary v. Town Sports Intl Holding, Inc., 21 Misc.3d 512,
514 (Sup. Ct. N.Y. Cnty. 2008) (republication exception applied where plaintiff alleged
republication of photograph from defendants sports clubs to defendants website and
defendant has not even addressed the issue).
III.

The Complaint Pleads No Grounds For Personal Jurisdiction Over

Defendant Rockstar North
Ms. Lohans persistence in suing Rockstar North, a foreign corporation

incorporated under the laws of the United Kingdom, is a further indication of the
Plaintiffs willful disregard for the law. Ms. Lohan does not plead a single fact to suggest
that Rockstar North conducts business in New York or that Rockstar North has any
connection to this case. Def. Br. at 24-25. Her entire argument for avoiding dismissal is
to cite a corporate webpage but that webpage expressly confirms that Rockstar North is
based in Edinburgh, Scotland. Opp. Aff. Ex. G (Rockstar North is based out of modern,
spacious, purpose-built studios in the heart of Edinburgh.). Ms. Lohan argues that the

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webpage refers to offices in the United Kingdom, Canada and the United States, but it is
obvious from the most cursory review of the webpage that those offices belong to
separate and distinct entities in the Rockstar Games corporate family, while Rockstar
Norths own presence is limited to Scotland. Opp. Aff. Ex. G.
Neither of the cases that Ms. Lohan cites supports exercising in personam
jurisdiction over Rockstar North. Opp. Aff. at 26. The defendant in Banham v. Morgan
Stanley & Co. Inc., 178 A.D.2d 236 (1st Dept 1991), was based in New York, and the
only issue was whether the named defendant was a proper defendant. In Amsellem v.
Host Marriott Corp., 280 A.D.2d 357 (1st Dept 2001), the plaintiff claimed jurisdiction
over a foreign subsidiary by virtue of an agency relationship with its domestic corporate
parent. The court held that a finding of agency for jurisdictional purposes cannot be
inferred from the mere existence of a parent-subsidiary relationship, and that for
jurisdiction to exist, the parent companys degree of control over the subsidiarys
activities must be so complete that the subsidiary is, in fact, merely a department of the
parent. Id. at 359 (emphasis added) (citation omitted). Nothing in Ms. Lohans
complaint even comes close to approaching that standard with respect to Rockstar North.
IV.

Sanctions Are Appropriate

Every time the absolute protection of creative works in New York has been

explained to the Plaintiff and her attorney, she has responded by simply ignoring the
law first, by bringing this suit after losing in Perez, then by serving this lawsuit after its
lack of merit was carefully explained to her, followed by amending the complaint after
the lack of merit was explained even more fully in Take-Twos original motion to

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dismiss, and now by defending the amended complaint with a grab bag of meritless
arguments.
The disregard shown by Plaintiff and her attorney for the law that governs this
case is nothing short of remarkable. They ignore the fundamental and well-established
legal rules that protect creative works. They argue that not one, but three different
GTAV characters each are actually depictions of Ms. Lohan based on
non-existent rights in imagery of young blond women depicted (a) being chased by
paparazzi, (b) wearing a bikini while making the V hand gesture, and (c) wearing jeans
shorts, aviator sunglasses, and a straw hat. They also persist in asserting (for example)
the baseless allegation that Take-Two used Ms. Lohans image on t-shirts and coffee
mugs (Am. Compl. 82), when it is clear that the merchandise at issue was taken from
third-party websites not associated with Take-Two. Def. Br. at 26. The Plaintiff likewise
continues to allege that Take-Two publicly announced Ms. Lohans name in association
with a look-a-like side mission, when it is obvious from the public record as well as the
face of the purported announcement itself that the statement was the personal opinion of a
third-party blogger. Id. As discussed in Section III, supra, Ms. Lohans new argument
that Rockstar North has offices in Canada and the United States is contradicted by her
own exhibit, which demonstrates that Rockstar Norths only office is located in
Edinburgh, Scotland.
Ms. Lohans only response concerning these demonstrably false allegations is that
she will withdraw them if discovery reveals that they are not true. Opp. Aff. at 28. But a
plaintiff and her lawyer are obligated to investigate claims before bringing them and they

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should not be pursued if they do not have reasonable support for the claims let alone
when they are demonstrably incorrect. See Yenom Corp. v. 155 Wooster Street, Inc., 33
A.D.3d 67, 73 (1st Dept 2006) ([A] court considering sanctions against a party or
attorney must consider whether the alleged frivolous conduct was continued when its lack
of merit was or should have been apparent to the party or attorney.); In re Winston, 243
A.D.2d 638, 639 (2d Dept 1997) (sanctions appropriate for making baseless accusations
. . . without checking into the accuracy of the underlying factual predicate supporting the
. . . allegations).
The record and the law fully support sanctions against Ms. Lohan and her
counsel. Def. Br. at 28; see also Bennett v. Towers, 14 Misc.3d 661, 672 (Sup. Ct.
Nassau Cnty. 2014) (The refusal to recognize the inherent weakness of plaintiffs action
and to continue to press forward notwithstanding [defendants offer to withdraw the
motion to dismiss and for sanctions in exchange for plaintiffs withdrawal of the action],
after he was in possession of their motion papers, supports a sanction.). Although the
court in Costanza v. Seinfeld, 279 A.D.2d 255 (1st Dept 2001) declined to grant
sanctions, the plaintiff in that case did not previously pursue and lose a frivolous
Section 51 claim against a protected creative work, like Ms. Lohan did in Perez, nor did
that plaintiff vexatiously continue to pursue meritless litigation as Ms. Lohan is doing.
At this point, Ms. Lohan can fairly be called a serial offender in her disregard of the law.

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CONCLUSION
For the reasons stated above, the Amended Complaint should be dismissed in its
entirety, with prejudice, and Defendants should be awarded sanctions, costs and fees.
Dated: January 23, 2015
New York, New York

Respectfully submitted,

DEBEVOISE & PLIMPTON LLP

By: /s/ Jeremy Feigelson
Bruce P. Keller
Jeremy Feigelson
Jared I. Kagan
919 Third Avenue
New York, New York 10022
(212) 909-6000
bpkeller@debevoise.com
jfeigels@debevoise.com
jikagan@debevoise.com
Counsel for Defendants

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