We had previously written about a September 1, 2016 ruling from a New York State appeals court relating to New York’s right of publicity and claims brought by celebrities Lindsay Lohan and Karen Gravano against the creator and distributor of the video game “Grand Theft Auto V.” On March 29, 2018, New York’s highest court weighed in on the question, upholding the appellate court, but on narrower grounds. Lohan v. Take-Two Interactive Software, Inc. et al., Nos. 23 & 24 (N.Y. Mar. 29, 2018).

Most of our readers are probably familiar with “Grand Theft Auto V” – the latest installment of the wildly popular video game franchise. The game – which takes place in a fictional American city – involves approximately 80 main story “missions” and optional random events, including encounters with other characters (avatars).

In their cases, the two celebrities, Lindsay Lohan and Karen Gravano (from TV’s “Mob Wives”) claimed that avatars in the games violated their rights to privacy by misappropriating their likenesses in violation of New York Civil Rights Law § 51. Although that law contains some exceptions, the law generally states that: “Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action . . . and may also sue and recover damages for any injuries sustained by reason of such use . . .”

Ms. Gravano alleged that the character “Andrea Bottino” in the game incorporated her image, portrait, voice and likeness, as well as several events from her life. Ms. Lohan claimed a violation of § 51 by alleging that

defendants used a look-alike model to evoke Lohan’s persona and image. Further, Lohan argues that defendants purposefully used Lohan’s bikini, shoulder-length blonde hair, jewelry, cell phone, and “signature peace sign’ pose” in one image, and used Lohan’s likeness in another image by appropriating facial features, body type, physical appearance, hair, hat, sunglasses, jean shorts, and loose white top. Finally, Lohan argues that defendants used her portraits and voice impersonation in a character that is introduced to the player in a “side mission.”

The trial court denied defendants’ motions to dismiss, but the appellate court dismissed both plaintiffs’ complaints. The appeals court found that the plaintiffs did not meet the requirements of § 51 because the game and the defendants never referred to either plaintiff by name, never used their actual names in the game, never used either woman as an actor for the game, and never used a photograph of either plaintiff. In short, there was no use of either plaintiff’s name, portrait or picture, as listed in § 51.

The appeals court also found that the video game, as a work of fiction, was not within the statutory definitions of “advertising” or “trade.” Instead, First Amendment protections (also discussed in the post on the Kanye West video) prevailed.

Finally, the appellate court also dismissed Ms. Lohan’s claim that her image was used in advertising materials for the game. As was the case with the game itself, the advertising materials used the game’s avatar, rather than images of Ms. Lohan, so the § 51 claim could not proceed.

On appeal, New York’s highest court affirmed, but decided the issue more narrowly than did the appellate court. This court focused on the term “portrait” in new York Civil Rights Law § 51 and concluded “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 article 5 of the Civil Rights Law.” Unlike the appellate court, this court did not reach the First Amendment issue.

With respect to Ms. Lohan’s claim, the court agreed with the appellate court that the game did not refer to her, did not user her name or her photograph. But this court ruled that the character “simply is not recognizable as plaintiff inasmuch as it merely is a generic artistic depiction of a ‘twenty something’ woman without any particular identifying physical characteristics.” In other words, “the ambiguous representations in question are nothing more than cultural comment that is not recognizable as plaintiff and therefore is not actionable.”