Can we all breathe a collective sigh of relief that Lindsey Lohan has lost her baseless lawsuit against Grand Theft Auto V and start asking whether Take Two should bother trying to go after her for the legal fees she forced them to expend? Every day, horrific violations actually occur against people, especially women, and the idea that a character who kind of maybe looked like Lohan appeared in roughly 1% of a video game caused “great and irreparable hardship and damage” should offend us all. It’s not as if Lohan were kidnapped and forced to record dialogue, or as if she were subjected to a 3D body scan against her will, so it’s unclear what “privacy” of hers could have been violated. Apparently, if you read her 67-page lawsuit, you’ll learn that she’s been using the peace sign “for years before and after its use in the video game,” which is a smoking gun, since clearly no other blonde woman in a red bikini has ever done this.
And it really doesn’t matter, either. Even if at the end of the day you accepted that the game had actually, intentionally based their anorexic starlet on Lohan, it’s still hard to believe that this would be wrong, unless they actually referred to her by name. And even then, they’d still have some margin of error, since the game is clearly a satirical reflection of Americana; based on your politics, it might be disrespectful to create shallow characterizations of Trump and Clinton (where is MTV’s claymation Celebrity Deathmatch when you need it?), but it’s far from illegal. Just look at Stephen Colbert’s lively interviews with “animated” Donald Trump.
This isn’t celebrity impersonation and no trademark is being infringed upon; you can’t sue someone for looking like Elvis–you’d have to also be performing like him, or purporting to be him (and even then, it’d have to be a commercial enterprise; you’re still good on Halloween). If you wanted to create an original character clearly inspired by Elvis and hit the lounge circuit, you could, so long as you were using a different name and different music. (If you were being parodic, for instance “Zombie Elvis” singing songs like “Brains! Brains! Brains! and “I Forgot to Remember Not to Eat You,” there might be contention, but you’d probably win.)
Copyright is meant to protect your work, not to damage the ability of others to create their own. (See also: Patent law.) If you’ve had specific cosmetic surgery to ensure that your look couldn’t possibly be a naturally occurring one, perhaps you can claim that image as your work, and then protect it from others, but until then, we need to stop suing over “composite characters” (The Wolf of Wall Street) and look-a-likes. That song sounds all too familiar, after all . . . maybe we should allow people to sue those who pathetically steal the idea for a successful lawsuit, or who attempt to scrounge up publicity in such a recognizably shallow way.