Lohan v. Take-Two Interactive Software, Inc.
31 N.Y.3d 111
| Court for the Trial of Impeach... | 2018Background
- Defendants developed and distributed the video game Grand Theft Auto V (GTAV), which includes a random event featuring a character named Lacey Jonas and two transition-screen images: "Stop and Frisk" and "Beach Weather."
- Plaintiff (a public figure claiming celebrity status) alleged Jonas is a look-alike and that the two images and the character misappropriate her portrait and voice without written consent.
- Plaintiff sued under Civil Rights Law §§ 50 and 51 seeking damages for unauthorized commercial use of her likeness; defendants moved to dismiss the amended complaint.
- Lower courts split: Supreme Court denied dismissal in part; Appellate Division modified and dismissed the operative pleading; plaintiff appealed to the Court of Appeals.
- The Court of Appeals considered (1) whether a computer-generated avatar can be a "portrait" under §§ 50–51 and (2) whether the GTAV images are recognizable as plaintiff.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an avatar/CG image can be a "portrait" under Civil Rights Law §§ 50–51 | An avatar or game image qualifies as a "portrait" of plaintiff and thus falls within the statute's protections | The statutory term "portrait" (enacted in 1903) should not extend to modern digital avatars | Held: Yes — "portrait" may include graphical representations/avatars; statutes in general terms cover technological developments |
| Whether the GTAV images/character are identifiable as plaintiff | The Jonas character and the two images cumulatively evoke plaintiff's portrait, persona, and voice; thus plaintiff is identifiable | The images are generic, satirical depictions of a young beach-going woman and do not contain identifiable characteristics tying them to plaintiff | Held: No — images are not reasonably identifiable as plaintiff; dismissal proper |
| Whether plaintiff's voice was used in GTAV | Plaintiff claimed misappropriation via voice resemblance/accent | Defendants submitted affidavit that plaintiff's voice was not used; plaintiff did not dispute absence of actual voice use | Held: No actionable voice claim; complaint dismissed on this ground too |
| Whether further elements (advertising/trade within NY) required resolution | Plaintiff maintained images were used commercially and for trade/advertising | Court noted these elements were contested but unnecessary to decide after resolving identifiability | Held: Not reached due to dispositive identifiability ruling |
Key Cases Cited
- Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (discussion of pre-statutory common-law privacy refusal)
- Cohen v. Herbal Concepts, 63 N.Y.2d 379 (recognizability requirement for § 51 claims)
- Messenger v. Gruner + Jahr, 94 N.Y.2d 436 (statutory scope and commercial limitation of Civil Rights Law article 5)
- Binns v. Vitagraph Co. of Am., 210 N.Y. 51 ("picture" and "portrait" include artistic representations)
- Leon v. Martinez, 84 N.Y.2d 83 (motion-to-dismiss standards)
- Burck v. Mars, Inc., 571 F. Supp. 2d 446 (recognizable likeness need not be an actual photograph)