The much-anticipated sixth outing in the Grand Theft Auto (hereinafter GTA) video game series has already attracted more than its fair share of controversy.
Now, Lawrence Sullivan, better known to the public as the “Florida Joker” after a widely publicized arrest in 2017, is suing Rockstar Games, the studio behind the GTA franchise, for $2 million.
He alleges that the game’s trailer includes his likeness without his consent or compensation.
But does this “Joker” have a trump card to play, or is this case just clowning around? Let’s take a closer look and see who’s holding the high cards at this table!
Rockstar and the Courts
To put these allegations into context, I think it’s important to start by looking at the various legal storms Rockstar and the GTA franchise have weathered in the past.
In the interest of keeping focused on the issue at hand, I’m not going to discuss internal actions such as a former head of Rockstar suing the company for unpaid royalties any further than to note that they have happened, and Rockstar has survived them.
You can read more about those in the link in this paragraph if you wish. We’re going to look specifically at two high-profile cases (and one low-profile but strange one) which strike at the heart of Sullivan’s allegations against Rockstar.
In December 2018, renowned security and private investigation agency Pinkerton sued Rockstar over the use of the company name in the gritty spaghetti-Western first-person shooter Red Dead Redemption, as well as the portrayal of (fictional) company employees as antagonists for the main character.
The company said a lump sum settlement would be considered, but felt that a percentage of all sales from the Red Dead Redemption game would be more appropriate as a royalty.
Rockstar fought back against the allegations, citing the fact that the game is essentially an “interactive motion picture” and a work of historical fiction. As the name “Pinkerton” is widely employed in this genre, especially in Old West and Victorian England depictions for the sake of historical accuracy, Rockstar alleged fair use and stated that Pinkerton was trying to “own history.”
Rockstar countersued–and Pinkerton blinked first, dropping its action in April 2019. Just days later, Rockstar dropped its own suit.
In 2014, Lindsay Lohan (yeah, THAT Lindsay Lohan) sued Rockstar for invasion of privacy, alleging that bikini-clad character Lacey Jonas in 2013’s GTA 5 was “obviously” based on her.
As with Pinkerton, Rockstar fought back, dismissing any likeness between Lohan and the fictional Jonas as coincidental. Although model Shelby Welinder later came forward to say she was the person upon whom Lacey Jonas’ character and appearance were based, Lohan kept pressing the courts for four years.
After a six-judge review panel at the New York Court of Appeals ruled her suit was without merit, the matter appears to have finally been concluded.
I’m looking at these cases specifically because they involve big names and (presumably) high-powered attorneys on both sides. This is important and relevant when we analyze Sullivan’s accusations against the video game giant and how likely they are to work in a courtroom setting.
There was also a case where convicted felon Johnathan Lee Riches sued Rockstar and the GTA franchise, alleging that GTA caused him to commit crimes, namely identity fraud, and that he was under constant threat from other inmates who had played the game as well.
However, his case was not helped by the fact that he had also tried to sue President George W. Bush, former Attorney General Janet Reno, and disgraced NFL player Michael Vick as well. In a shocking plot twist (not really), the case was dismissed.
Taking these cases as a whole, we’ve got a picture of the sorts of suits Rockstar has successfully dealt with in the past. Now, let’s move on to the latest legal scuffle.
Enter the (Florida) Joker
As mentioned above, Lawrence Sullivan rose to some level of semi-notoriety in 2017 when he was arrested for possession of marijuana and a handgun. His face tattoos and wild hair color earned him the nickname “Florida Joker” among online wags, who drew inevitable comparisons between Sullivan and Jared Leto’s much-lampooned portrayal of The Joker in the blockbuster movie Suicide Squad.
The “Florida Joker” became an identity he leaned into and seemingly has been seeking ways to monetize ever since he finished serving time for the bust. His allegations seem to be based on a clip of a non-player character, or NPC, who shows up in the trailer with canary-yellow hair sticking straight up in an apparent ode to hairstyles involving carelessness with electrical current, towering over a gaunt face liberally adorned with tattoos.
Like most millennials, Sullivan took his grievances against Rockstar to the public forum–namely Instagram, where he said, “GTA, we gotta talk. Or no, you gotta give me like a mill or two…Y’all took my likeness. Y’all took my life.” Sullivan then followed up with a formal lawsuit against Rockstar Games in the amount of $2 million.
Who’s Got the Ace?
From an IP law perspective, Sullivan appears to be on very shaky ground right out of the gate. While there is a growing movement toward high-profile people trademarking and copyrighting their faces, bodies, voices, and body of work due to the ever-growing threat from AI, generally speaking, people’s natural genetic characteristics are not protected because they don’t come from human art or invention, but from nature itself. Sure, you can craft and tailor your body and face to a degree, but ultimately, your body is a result of nature. There is an argument to be made that if you add tattoos or other body modifications, those could be protectable, but even then, the artist who did the work would technically own the IP rights, NOT the person who actually wears the end result of the work. Think of this as being like giving an artist a canvas to paint. You could argue that, by providing the canvas, you own a piece of the rights to the work, but that’s not how the law sees it. The end result and the identity of the actual person who did the work is what matters. To the best of my knowledge, this specific approach to IP law has never been tested in the courts, so the question lives more in the Riddler’s purview than The Joker’s when it comes to settled case law.
That said, Sullivan’s argument appears to be entirely predicated on the idea that Rockstar used his likeness as inspiration to create a character. While that’s possible, Rockstar would be foolish in the extreme to admit it, and the “Florida Joker” is hardly the only person walking around the USA with unnaturally colored hair and face tattoos. Additionally, because GTA6 is set in “Vice City,” which is of course based on Miami, Florida, it’s logical and thematically in tune for Rockstar to use infamous “Florida Man Arrested” news stories as inspiration and to set the tone for the game. This “pulled from the headlines” approach is one of the key ingredients to the GTA franchise’s success, even if you leave aside the ability for the player to be gratuitously and egregiously BAD with a capital BAD (and therefore be the good guy) within the world of the game. However, inspiration by itself is not sufficient grounds to generate a cause of action. A side-by-side comparison of Sullivan and the character referenced in GTA is at best cursorily similar, but different and distinct enough to make it highly unlikely the courts will side with Sullivan, especially given the outcomes of the Lindsey Lohan and Pinkerton cases, which you can absolutely guarantee Rockstar will reference in their response to Sullivan’s action.
One more element that doesn’t appear to have been considered is who owns the copyrights and trademarks to The (OG) Joker. It’s a tiny little company you’ve likely never heard of* called Warner Bros, who owns DC Comics. According to 2022 figures from Zippia.com, DC Comics’ annual revenue was clocked at $160 million. CompaniesMarketCap.com says Warner Bros. weighs in at $33.81 BILLION. By contrast, Rockstar Games’ annual revenue is a paltry $63 million.
Although Rockstar has a formidable track record of punching above its weight in court, DC alone could probably take Rockstar to the cleaners. Warner Bros. could annihilate them entirely, or more likely just buy the company outright over breakfast and forget all about it by lunchtime. This is relevant because, by taking on the moniker “Florida Joker” and playing up the similarities between himself and the Jared Leto rendition of The Joker, Sullivan may himself be committing trademark infringement. If Sullivan drew enough attention to himself, it’s entirely possible that DC/Warner Bros. could start taking notice and worse, an interest, to Sullivan’s detriment.
The Bottom Line
Much like the time The Joker tried to copyright a fish, this case certainly makes for some entertaining reading and interesting water cooler chat, but I cannot see it going anywhere of any substance. If Lindsay Lohan and Pinkerton couldn’t persuade the courts, it’s highly unlikely that a minor local name is going to come up with a truly novel argument or an approach that might do better before a judge. There is a chance that Sullivan could pull off the IP law equivalent of drawing to an inside royal flush with only three cards in his hand on the flop (if you play Texas Hold ‘Em, you know what I’m talking about; the odds against this are calculated at 649,740:1), but the odds are so low that even the most degenerate gambler would be unlikely to bet on him.
The Joker’s wild, but in this case, I just don’t think it’s a strong enough card to win against the hand Rockstar’s playing with. It will be interesting to watch how this plays out, though!
ABOUT JOHN RIZVI, ESQ.
John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).
His books include “Escaping the Gray” and “Think and Grow Rich for Inventors” and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show – Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at www.ThePatentProfessor.com
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