Lohan v. Take-Two Interactive Software, Inc.
31 N.Y.3d 111, 73 N.Y.S.3d 780, 97 N.E.3d 389 (2018)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under New York Civil Rights Law §§ 50 and 51, a computer-generated image such as a video game avatar may constitute a 'portrait,' but a claim for misappropriation of likeness requires that the depiction be a recognizable likeness of the plaintiff, not merely a generic or satirical representation of a style or persona.
Facts:
- Defendants developed, marketed, and sold the video game 'Grand Theft Auto V' (GTAV).
- GTAV includes a 'random event' featuring a character named 'Lacey Jonas,' an 'actress slash singer' hiding from paparazzi.
- The game also used promotional images on loading screens, packaging, and advertising, including a 'Stop and Frisk' image and a 'Beach Weather' image, depicting a blonde woman.
- Plaintiff, a celebrity actor, alleged that the Lacey Jonas character was her 'look-a-like' and that the promotional images evoked her 'images, portrait[,] and persona.'
- Plaintiff did not provide written consent for the use of her alleged likeness or voice in the game or its promotional materials.
Procedural Posture:
- Plaintiff commenced an action against defendants in the New York Supreme Court (the state's trial-level court of general jurisdiction) for invasion of privacy under Civil Rights Law §§ 50 and 51.
- Defendants moved to dismiss the amended complaint for failure to state a cause of action.
- The Supreme Court denied the defendants' motion to dismiss.
- Defendants, as appellants, appealed to the Appellate Division of the Supreme Court, First Department (an intermediate appellate court).
- The Appellate Division modified the lower court's order and granted the defendants' motion to dismiss the amended complaint.
- The Court of Appeals (New York's highest court) granted plaintiff, now the appellant, leave to appeal.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a video game avatar that is a satirical representation of a modern young woman, but not a recognizable likeness of a specific person, constitute a 'portrait' for which that person can sue for misappropriation under New York Civil Rights Law §§ 50 and 51?
Opinions:
Majority - Fahey, J.
No. While a video game avatar can qualify as a 'portrait' under the statute, it does not violate New York's right of privacy law unless the plaintiff is recognizably depicted. The court held that statutes framed in general terms, like the Civil Rights Law, should be construed to encompass future technological developments, meaning a digital avatar can be a 'portrait.' However, for a misappropriation claim to succeed, the plaintiff must be recognizable from the image alone. Here, the court found the 'Lacey Jonas' character and the promotional images to be 'indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman' that were not reasonably identifiable as the plaintiff. Since the depictions were generic cultural commentary and not a recognizable likeness, the claim for invasion of privacy fails.
Analysis:
This decision modernizes New York's century-old right of privacy statute by confirming its applicability to digital media like video games. However, it sets a high bar for such claims, requiring a 'recognizable likeness' rather than just a general resemblance or evocation of a plaintiff's persona. This ruling provides significant protection for creators of expressive works, such as video games and films, allowing them to create satirical or fictional characters inspired by modern culture without facing liability for incidental resemblances to public figures. The decision balances the statutory right of privacy against the First Amendment rights of creators to engage in cultural commentary.
