Lohan v. Take-Two Interactive Software, Inc. - 2018 NY Slip Op 02208, 31 N.Y.3d 111, 73 N.Y.S.3d 780, 97 N.E.3d 389

Rule:

To prevail on a right to privacy claim pursuant to Civil Rights Law § 51, a plaintiff must prove: (1) use of plaintiff's name, portrait, picture or voice (2) for advertising purposes or for the purposes of trade (3) without consent and (4) within the state of New York. The Court of Appeals of New York concludes that an avatar, that is, a graphical representation of a person, in a video game or like media, may constitute a portrait within the meaning Civil Rights Law art. 5.

Facts:

Defendants developed the Grand Theft Auto V (GTAV) game wherein a character named “Lacey Jonas” appeared. In the game, Jonas described herself as an “actress/singer” and the “voice of a generation.” Plaintiff, who described herself as a figure “recognized in social media” and as “a celebrity actor who has been regularly depicted in television, tabloids, blogs, movies, fashion related magazines, talk shows and theatre for the past 15 years” alleged that the Jonas character was her “look-a-like.” According to the plaintiff, the character misappropriated her portrait and voice without her consent. Consequently, plaintiff commenced the present action seeking, among other things, compensatory and punitive damages for invasion of privacy in violation of Civil Rights Law §§ 50 and 51. In lieu of answering, defendants moved to dismiss the amended complaint for failure to state a cause of action. The complaint was dismissed by the Appellate Division.

Issue:

1. May an avatar constitute a “portrait” within the meaning of Civil Rights Law §§ 50 and 51?
2. Was the video game character in question recognizable as the plaintiff, thereby giving plaintiff cause of action for violation of privacy?

Answer:

1) Yes. 2) No.

Conclusion:

The Court determined that 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 with regard to invasion of privacy. In the case at bar, the Court affirmed the dismissal of plaintiff's complaint because the video game character simply was not recognizable as plaintiff inasmuch as it merely was a generic artistic depiction of a twenty something woman without any particular identifying physical characteristics and it was undisputed that defendants did not refer to plaintiff in the game, did not use her name, and did not use a photograph of her in the game.