Lohan v Take-Two Interactive Software, Inc.

Lohan v Take-Two Interactive Software, Inc.

Opinion

 [***782]  [*117]  [**391]    Fahey, J.

The primary questions on this appeal are whether ] an avatar (that is, a graphical representation of a person, in a video game or like media) may constitute a "portrait" within the meaning of Civil Rights Law §§ 50 and 51 and, if so, whether the images in question in the video game central to this matter are recognizable as plaintiff. We conclude a computer generated image may constitute a portrait within the meaning of that law. We also conclude, however, that the subject images are not recognizable as plaintiff, and that the amended complaint, which contains four causes of action for violation of privacy pursuant to Civil Rights Law §§ 50 and 51, was properly dismissed.

Facts¹

Defendants develop, sell, market, and distribute [****2]  video games, including the commercially successful "Grand Theft Auto V" (GTAV) game. GTAV is an action-adventure game that is set in a fictional state called "San Andreas" that, according to the vice-president for quality assurance of defendant Rockstar Games, Inc. (Rockstar), is intended to evoke Southern California. GTAV's plot occurs in and around a fictional city called "Los Santos," which in turn is intended to evoke Los Angeles. In addition to a 50-hour principal storyline, GTAV contains approximately 100 hours of supplementary game play containing "random events" that a player may choose to explore as he or she proceeds through the game's main plot.

One of those random events is relevant to this appeal. In what defendants characterize as the "Escape Paparazzi" scene in GTAV, the player encounters a character named "Lacey Jonas" hiding from paparazzi in an alley. To the extent the player chooses to help her escape those photographers, Jonas enters the player's automobile before describing herself as an "actress slash singer" and the "voice of a generation." Jonas also characterizes herself as "really famous," and the player's character recognizes "that Jonas has [**392]   [***783]  starred in romantic [****3]  comedies and a cheerleader dance-off movie."

 [*118]  Before the GTAV storyline may proceed to any random events, including the "Escape Paparazzi" scene, the player must view what defendants refer to as "transition screens," which "contain artwork that appears briefly on the user's screen while the game content [loads] into the game console's memory." Two "screens" from GTAV are relevant to this appeal. One such screen contains an image (the "Stop and Frisk" image) of a blonde woman who is clad in denim shorts, a fedora, necklaces, large sunglasses, and a white T-shirt while being frisked by a female police officer. The second such screen contains an image (the "Beach Weather" image) wherein the same blonde woman is depicted wearing a red bikini and bracelets, taking a "selfie" with her cell phone, and displaying the peace sign with one of her hands.

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