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The terms "portrait" or "picture" used in Civil Rights Law § 51 are not interpreted literally and, therefore, the reach of the section is not restricted to photographs. Actionable images constitute those representations which are recognizable as likenesses of the complaining individual. Any recognizable likeness may qualify as a portrait or picture. To contrast, references, suggestions or evocations of certain characteristics or aspects amounting to nothing more than personifications are not actionable under the statute. Put another way, there must be a close and purposeful resemblance to reality of the claimant. Although determining whether an image qualifies as a recognizable likeness of a person is generally a jury question, the court may summarily decide the matter in an appropriate case.
Plaintiff filed a complaint against defendant, alleging that the latter violated Civil Rights Law §§ 50 and 51 by using plaintiff's name, portrait and/or picture without his permission in a video game, NBA2K18, it created, advertised and sold. Plaintiff claimed that he was and has been for the past 20 years a “celebrity basketball entertainer” who was "ubiquitously" known as "Hot Sizzle" and "Hot Sauce." The dispute in the action centered on one of the “non-playable” characters (NPCs) in the game. The NPC at issue depicted a young, African-American male with a "mohawk" hairstyle and beard who wore matching black shorts and tank top with white piping and waistband. The avatar also sported all-white high-top sneakers. On the tank top and shorts were identical apparently human figures that appeared to be a person leaping to "dunk" a basketball. Centrally located on the front and rear of the tank top was the numeral "1" and on the rear were the words in capital letters "HOT SIZZLES." Defendant moved to dismiss plaintiff’s complaint for failure to state a claim under CPLR 3211 (a) (7)
Did the defendant violate Civil Rights Law §§ 50 and 51 by appropriating plaintiff’s likeness for use in defendant's video game?
Plaintiff basketball entertainer's complaint alleging defendant video game creator violated Civil Rights Law §§ 50 and 51 by appropriating his likeness for use in defendant's video game was dismissed as the avatar in defendant's video game, from a visual perspective, was not recognizable as plaintiff. To be actionable under sections 50 and 51, a person's "name," "portrait" or "picture," in addition to being without written consent, must be used for "advertising" or "trade" purposes within New York State. The statutory terms "portrait" or "picture" were not interpreted literally and, therefore, the statute's reach was not restricted to photographs. Actionable images constituted those representations which were recognizable as likenesses of the complaining individual. To contrast, references, suggestions or evocations of certain characteristics or aspects amounting to nothing more than personifications were not actionable under the statute. There must be a close and purposeful resemblance to reality of the claimant. Here, the avatar in the video game plaintiff claimed was an appropriation of his likeness bore no resemblance to plaintiff whatsoever. The only reasonable commonalities which might have been noted between plaintiff and the avatar were that both were male, African-American in appearance, and played basketball.