Computer-Generated Avatar May Constitute a "Portrait" Within the Meaning of Civil Rights Law Article 5

On March 29, 2018, the Court of Appeals issued a decision in Lohan v. Take-Two Interactive Software, Inc., 2018 NY Slip Op. 02208, holding that a computer-generated avatar may constitute a "portrait" within the meaning of Civil Rights Law article 5, explaining:

The language of a statute is generally construed according to its natural and most obvious sense in accordance with its ordinary and accepted meaning, unless the Legislature by definition or from the rest of the context of the statute provides a special meaning. Civil Rights Law § 51 was enacted in 1903, at which time digital technology was uninvented. To that end, a reasonable mind could question how the term "portrait," as incorporated in the original and present forms of Civil Rights Law § 51, could embrace the imagery in question.

The appropriate course, however, is to employ the theory of statutory construction that general terms encompass future developments and technological advancements. In the context of statutory construction, this Court has observed that general legislative enactments are mindful of the growth and increasing needs of society, and they should be construed to encourage, rather than to embarrass, the inventive and progressive tendency of the people.

Operating under that standard, we conclude that an avatar may constitute a "portrait" within the meaning of Civil Rights Law article 5. We have held that the term "portrait" embraces both photographic and artistic reproductions of a person's likeness. Federal courts share the view that any recognizable likeness, not just an actual photograph, may qualify as a portrait or picture, having ruled that a composite photograph and drawing and a cartoon may trigger the protections of Civil Rights Law article 5. In view of the proliferation of information technology and digital communication, we conclude that a graphical representation in a video game or like media may constitute a "portrait" within the meaning of the Civil Rights Law.

(Internal quotations and citations omitted). Unfortunately for the plaintiff in this action, the Court of Appeals went on to hold that the computer-generated avatar at issue in this action was not a portrait of the plaintiff.

While this decision relates to the interpretation of New York's Civil Rights Law and the right to privacy, fundamentally, it relates to commercial dispute--the question was whether an actress's likeness was being used in a video game without permission or payment. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether someone is improperly using you--your image, fame or intellectual property--to advance their business interests.