Civil Rights Law § 51 Claims For Misuse Of Likeness Against Grand Theft Auto V Dismissed On Appeal

On September 1, 2016, the First Department issued a decision in Gravano v. Take-Two Interactive Software, Inc., 2016 NY Slip Op. 05942, dismissing plaintiffs' claims under N.Y. Civil Rights Law § 51.

Plaintiff Karen Gravano is the daughter of notorious mafia figure Sammy "the Bull" Gravano, and is currently appearing on the reality show "Mob Wives," and plaintiff Lindsay Lohan is a well-known actress. The plaintiffs both brought actions alleging, inter alia, that their likenesses had been misappropriated by Take-Two for use in its video-game Grand Theft Auto 5. Plaintiff Gravano alleged that a peripheral character in the game bore her likeness and also incorporated many personal details about her life, from an East-coast mob father who testified as an informant, to the character’s father's disapproval of the character’s reality show. Plaintiff Lohan alleged that two different characters incorporated her likeness. The first, "Red Bikini Girl" was not a character in the game but was solely used for marketing purposes. The second, "Lacey Jonas," is a secondary character in the game, a washed-up former teenage movie-star who has continual run-ins with the police. Ms. Lohan alleged that both characters bore her likeness, clothing, and image, and that "Lacey Jonas's" voice was an impersonation of hers.

In the trial court, Take-Two moved to dismiss both actions, and both motions were denied by Justice Joan Kenney. The Appellate Division reversed, and granted dismissal.

The Appellate Division first held that neither plaintiff's "name, portrait, or picture" was actually used, thereby foreclosing any § 51 claim:

defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her . . . . defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan.

The Appellate Division also held that Grand Theft Auto 5 did not "fall under the statutory definitions of 'advertising' or 'trade,'" because the game was "a work of fiction and satire." Even the use of "Red Bikini Girl" to market the game was permissible because "the use of the character in advertising was incidental or ancillary to the permitted use, and therefore was not commercial."

Although not an appeal from a Commercial Division part, this decision is of interest because it illustrates that the Appellate Division defines § 51's limitation to "name, portrait, picture or voice" very narrowly—"portrait" and "picture" both appear to be interpreted as "photograph," and a more general misappropriation of "image" or "likeness" is not compensable. Indeed, is difficult to see how any lawsuit alleging misappropriation of “portrait, picture or voice” in an animated medium like a video game could hope to survive dismissal. The Appellate Division also brushed aside Ms. Lohan's claim that "Red Bikini Girl" was used to advertise the video game and was not a character in the game at all, leading the reader to suspect that the court wanted to be clear that celebrity look-alikes or parodies were not protected by § 51 under any circumstances. (A Google Images search for "gta 5 advertising" reveals the extent of "Red Bikini Girl's" use in promoting the game.)