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lawsuitplaintiffappealmotioncivil rightsmotion to dismiss
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Lohan v. Take-Two Interactive Software, Inc., 31 N.Y.3d 111, 97 N.E.3d 389, 73 N.Y.S.3d 780, 2018 N.Y. Slip Op. 02208

Facts

A celebrity brought a lawsuit against a video game company, claiming that an avatar in their game misappropriated her likeness and voice, violating her right to privacy under New York law. The Supreme Court initially denied the company's motion to dismiss, but the Appellate Division later dismissed the complaint. The celebrity appealed to the Court of Appeals, which had to determine whether the avatar constituted a 'portrait' under the law and whether it was recognizable as the celebrity.

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.'

Issue

Did the video game avatar constitute a 'portrait' of the celebrity under New York Civil Rights Law, and was it recognizable as her?

Rule

To prevail on a statutory right to privacy claim in New York, a plaintiff must demonstrate: (1) the use of their name, portrait, picture, or voice; (2) for advertising or trade purposes; (3) without consent; and (4) within the state. An avatar may qualify as a 'portrait' if it presents a recognizable likeness.

Analysis

The court analyzed whether the avatar in question could be considered a 'portrait' under the law. It concluded that while an avatar could potentially qualify as a portrait, the specific avatar in the game was not recognizable as the celebrity. The court emphasized that there can be no appropriation of likeness if the individual is not identifiable from the image.

Conclusion

The Court of Appeals affirmed the Appellate Division's order, concluding that the avatar did not constitute a recognizable portrait of the celebrity, and thus the statutory right to privacy claim was properly dismissed.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

Who won?

The video game company prevailed in this case because the court found that the avatar did not meet the legal definition of a 'portrait' under New York law. The court determined that the avatar was a generic representation and lacked identifiable characteristics that would link it to the celebrity. As a result, the claims of misappropriation of likeness and voice were dismissed.

The video game company prevailed because the court found that the avatar was merely a generic artistic depiction of a young woman without any particular identifying physical characteristics, and the game did not use the celebrity's name or photograph.

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