A. Delle Donne, for appellant.
Feigelson, for respondents.
Huntley; Motion Picture Association of America, Inc. et al.;
Entertainment Software Association; American Booksellers
Association, et al.; Eric M. Freedman, et al., amici curiae.
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.
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.
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."
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.
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.
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."
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] ) and based on, among other
things, documentary evidence (see CPLR 3211 [a]
). 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 ), and we now affirm the Appellate
Division order insofar as appealed from.
Statutory Right of Privacy
New York common law did not recognize a cause of action for
invasion of privacy" (Shields v Gross, 58
N.Y.2d 338, 344 ). That point was articulated in
Roberson v Rochester Folding Box Co. (171 NY 538
), 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 ...