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Lohan v. Take-Two Interactive Software, Inc.

New York Court of Appeals

March 29, 2018

Lindsay Lohan, Appellant,
Take-Two Interactive Software, Inc., et al., Respondents.

          Frank A. Delle Donne, for appellant.

          Jeremy Feigelson, for respondents.

          Jarryd Huntley; Motion Picture Association of America, Inc. et al.; Entertainment Software Association; American Booksellers Association, et al.; Eric M. Freedman, et al., amici curiae.


          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.

         Facts [1]

         Defendants develop, sell, market, and distribute 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 starred in romantic comedies and in a dance-off movie."

         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.

         Defendants purportedly released GTAV for the PlayStation and Xbox 360 video game consoles on or about September 17, 2013. Through that release, copies of GTAV were distributed to and sold by numerous domestic and foreign retailers, including retailers within New York State. To advertise the game prior to its release, defendants allegedly used the "Stop and Frisk" and "Beach Weather" images on various promotional materials, including billboards. Defendants also used the "Beach Weather" image on the packaging for the GTAV, and both the "Beach Weather" and "Stop and Frisk" images on video game discs.

         According to plaintiff, who describes 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, " the Jonas character is her "look-a-like" and misappropriates her "portrait[] and voice." Plaintiff also believes that the "Stop and Frisk" and "Beach Weather" images each cumulatively evoke her "images, portrait[, ] and persona."

         Inasmuch as she did not provide written consent for the use of what she characterizes as her portrait and her voice in GTAV, plaintiff commenced this 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 (see CPLR 3211 [a] [7]) and based on, among other things, documentary evidence (see CPLR 3211 [a] [1]). Supreme Court denied the part of the motion seeking dismissal of the amended complaint but, on appeal, the Appellate Division modified that order and granted that application to the extent it sought dismissal of the operative pleading (142 A.D.3d 776, 777 [1st Dept 2016]). We subsequently granted plaintiff leave to appeal to this Court (28 N.Y.3d 915');">28 N.Y.3d 915 [2017]), and we now affirm the Appellate Division order insofar as appealed from.

         The Statutory Right of Privacy

         "Historically, New York common law did not recognize a cause of action for invasion of privacy" (Shields v Gross, 58 N.Y.2d 338, 344 [1983]). That point was articulated in Roberson v Rochester Folding Box Co. (171 NY 538 [1902]), which arose from the unauthorized use of approximately 25, 000 reproductions of a photograph of the infant plaintiff to promote the defendant's flour (see id. at 542). In dismissing the complaint in that matter, which sounded in the breach of a "so-called right of privacy" (id. at 544), we "broadly denied the existence of such a cause of ...

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