Grand Theft Auto-maker Rockstar Games is no stranger to courtroom battles, but the studio’s latest legal challenge is unusual.
A newly filed lawsuit alleges that a character from Grand Theft Auto: Vice City infringes on copyrights protecting Miss Cleo, a TV psychic who was a staple of ’90s pop culture. The filing itself isn’t odd, but the timing certainly is: Vice City originally released in 2002; the most recent re-release, for FireOS, was in 2013.
At best, this is happening four years too late. Or so it seems, at any rate.
The suit, which TMZ first reported last week, claims that Vice City‘s Auntie Poulet amounts to an “unauthorized reproduction of copyrighted materials.” Miss Cleo was a familiar face on TV in the late ’90s, but many don’t realize that she was just a character brought to life by the late Youree Dell Harris, who passed away in 2016.
Rockstar parent Take-Two Interactive has pledged to fight back. A company spokesperson shared the following statement: “These claims are entirely meritless and completely ridiculous. We will vigorously defend ourselves with regard to this matter.”
The text of PRN’s filing claims that “Auntie Poulet’s similarities to Miss Cleo and her copyrighted attributes are of such a breadth and extraordinary nature that they can only be explained by copying – which is unsurprising given that [Rockstar] hired the actress who performed as Miss Cleo to provide voiceovers, using the same accent as Miss Cleo, for the infringing videogame.”
On the surface, it seems like PRN has a compelling case here. Auntie Poulet bears no small resemblance to Miss Cleo; the Vice City character even sports Cleo’s Jamaican accent — out of place, given Poulet’s role in the game as a Haitian gang leader.
The 10-page filing (which you can read in full below) argues that Rockstar knowingly infringed, as evidenced by a number of factors.
One was the decision to hire Harris “at the height of her popularity” for the Poulet role, “to capitalize on the notoriety and fame of Miss Cleo in order to create her clone.” The visual resemblance also matters, PRN claims.
“In particular, [Rockstar] copied Miss Cleo’s vibrantly colored caftans and turbans, as well as the patois and mysticism of Miss Cleo, in designing and animating her doppelganger Auntie Poulet. Both Miss Cleo and Auntie Poulet are said to be trained in Voodoo, have a strong link to the occult, are of Afro Caribbean origin, and reside in South Florida. Auntie Poulet is voiced by Ms. Harris, who uses the same fake Jamaican accent (rather than using a French Creole Haitian accent that would comport with Auntie Poulet’s stated background) she used when performing as Miss Cleo.”
Page 7 of the filing includes a collection of images that offer side-by-side comparisons of Miss Cleo’s TV appearances and Auntie Poulet’s appearance in the game.
There’s one more key point to take away from the filing: PRN claims that, prior to Harris’ death in 2016, the company had no knowledge of the infringement. A footnote in the filing reads:
Prior to reviewing this obituary (and others), PRN had no knowledge of Defendants’ infringement of its intellectual property in Miss Cleo Creatives. Specifically, it came to Plaintiff’s attention in July 2016 that Defendants and/or their agents had produced and distributed the infringing videogame without Plaintiff’s knowledge or authorization. This was the first time that Plaintiff learned of Ms. Harris’s involvement in Vice City. After reviewing Vice City, Plaintiff discovered Defendants’ infringement and has brought this action to enforce its intellectual property rights.
Keep that in mind. It’s important.
An expert’s view
While there’s no way of knowing in advance how any court case will turn out, we can — with expert help — make some educated guesses. For that, we turned to Brandon J. Huffman; his firm, Odin Law and Media, specializes in “video game, digital media, entertainment and internet businesses.”
“The issue is whether GTA infringes the copyright in the Cleo works. PRN will have to prove that the two works share [so many] similarities that there really is little other explanation,” he said.
The timing of the lawsuit presents a major hurdle for PRN from the get-go, however.
Vice City was released in 2002; it’s been re-released a number of times since, most recently for mobile platforms in 2012 and 2013. PRN contends that it knew nothing of the game’s infringement on Cleo until Harris’ 2016 obituary.
That’s a tough sell from Huffman’s perspective, however. He thinks Rockstar would refute the claim by pointing right back at PRN’s filing, which describes at length Vice City‘s global presence and enduring success.
“They argue themselves how popular the game was,” he said.
Even if we put the game’s established public profile aside, PRN still faces challenges because of where the lawsuit was filed: the Eleventh Judicial Circuit, which presides over cases in Alabama, Florida, and Georgia. That affects how the statute of limitations — which is three years for copyright infringement — is interpreted for this case.
“Different courts have come out [in] different ways on when the statute of limitations for copyright infringement … stops running,” Huffman said. In some courts, the clock starts running on statute of limitations at the moment the infringing act is discovered. That’s not the case here, however.
“In the Eleventh Circuit, where the lawsuit has been filed, it starts to run on the last infringing act. So here, the fact that [PRN] didn’t discover it [until recently] — it seems like they’re making a big deal out of that. But it doesn’t really matter in the Eleventh Circuit that they didn’t discover it until 2016,” Huffman said.
“Auntie Poulet is pretty over the top, but so is Miss Cleo.”
PRN could argue that the infringement continues today. After all, you can still buy Vice City as a brand new game from a number of digital storefronts. But the court’s interpretation of the rules once again comes into play.
“If the infringement has continued, the court may limit the recovery to only the more recent infringement,” Huffman said. “As you know, [that] would not be near as significant as it would be if they had brought the case within three years of the initial  release.”
Even if the court ends up siding with PRN on all of these points, Rockstar has another option: mounting a “parody defense.” Basically, Rockstar would accept PRN’s claim that Poulet is a copy, but argue that her appearance in the game falls under the bounds of fair use parody.
As Huffman put it: “Auntie Poulet is pretty over the top, but so is Miss Cleo.”
You might wonder — as I did — why Rockstar wouldn’t simply start with that. The answer is actually quite simple: doing so would amount to an admission of guilt on the infringement claim.
“A lot of indie developers don’t get this, actually. A parody defense basically says, ‘Yes, it’s copyright infringement but the 1st Amendment protects it because it’s parody,” Huffman said. “You’re sort of admitting that what you did was copyright infringement.”
It makes more sense, then, for Rockstar to lean first on procedure. It’s an easier play if you’re the Defendant in a case like this.
“If they start with the procedural stuff, like statue of limitations or something like that, they never have to make arguments,” Huffman said of Rockstar’s likely first move. “They just have to file papers and make procedural arguments; they never get to the substance.”
Rockstar also has the option of attempting to settle with PRN out of court. Doing so would allow the studio to avoid plunging into what could turn into a lengthy legal proceeding.
That said: if you’re familiar with how Rockstar rolls as a company, you probably know a settlement isn’t going to happen. Even if we dismiss Take-Two’s stated promise to “vigorously defend” itself, such a move would be out of character — and potentially dangerous in the long run — for Rockstar.
“I think if it was a different company … they would almost certainly settle it,” Huffman said. “The reputation here suggests that they won’t, probably in part because they push the envelope on a lot of things in those games and they don’t want to set a precedent that they write checks.”
You can read through the full text of PRN’s 10-page filing right here: