The Court of Appeals’ February Session continues on Wednesday, February 7, 2018, with four cases (three arguments) on the docket (the Court’s case summaries can be found here). The Court will hear arguments on the following issues: (1) whether a contract of insurance that provides it will cover as an additional insured any party that the insured has “agreed to add as an additional insured by written contract” requires a direct agreement between the insured and the intended additional insured, or whether a recital in a collateral agreement is sufficient; (2) whether the Civil Rights Law § 51 right to privacy protects against use of a person’s likeness in a video game; and (3) whether the People were entitled to a Frye hearing to challenge the scientific basis for a criminal defendant’s expert’s theory of the victim’s death where the theory was not novel (that the victim died of drowning after ingestion of five prescription drugs, instead of by strangulation).
No. 23 Gravano v Take-Two Interactive Software, Inc.
No. 24 Lohan v Take-Two Interactive Software, Inc.
Grand Theft Auto V is the latest in a popular series of the video games where the player controls one of several main characters in a mob family/drug cartel story that takes place in the fictional city of Los Santos, San Andreas. After the game was released, Plaintiffs Lindsay Lohan and Karen Gravano (of the reality show Mob Wives) were upset at what they believed to be characters that depicted them in particular ways. In 2014, they commenced suit against Take-Two Interactive Software, Inc., the video game’s creator, alleging that it misappropriated their likenesses and violated their rights to privacy under New York Civil Rights Law § 51.
Specifically, Lohan alleged that the Take-Two “used a look-alike model to evoke Lohan’s persona and image. Further, Lohan argue[d] that defendants purposefully used Lohan’s bikini, shoulder-length blonde hair, jewelry, cell phone, and signature peace sign pose in one image, and used Lohan’s likeness in another image by appropriating facial features, body type, physical appearance, hair, hat, sunglasses, jean shorts, and loose white top. Finally, Lohan argue[d] that defendants used her portraits and voice impersonation in a character that is introduced to the player in a side mission.” Gravano v Take-Two interactive Software, Inc., 142 AD3d 776, 777 (1st Dept 2016) (internal quotation marks omitted).
Gravano similarly claimed that the GTA character “Andrea Bottino” mirrored “her image, portrait, voice, and likeness” and “use[d] the same phrases she uses; that the character’s father mirror[ed] Gravano’s own father; that the character’s story about moving out west to safe houses mirrored Gravano’s fear of being ripped out of her former life and being sent to Nebraska; that the character’s story about dealing with the character’s father cooperating with the state government [was] the same as Gravano dealing with the repercussions of her father’s cooperation; and that the character’s father not letting the character do a reality show is the same as Gravano’s father publicly decrying her doing a reality show.” Id. at 776-777.
After Supreme Court denied Take-Two’s motions to dismiss, the Appellate Division, First Department reversed and dismissed the complaints in their entirety. The Court held that New York’s right to privacy statute, Civil Rights Law § 51, protects individuals’ name, portrait, and picture, none of which the Court held was used in GTA’s fictional characters. See id. at 777. The look-alike depictions, the Court held, were not close enough to violate Lohan’s and Gravano’s rights to privacy. See id.
The Court further held that even if the GTA depictions were enough to be considered representations of Lohan and Gravano, their claims failed nonetheless because the video game did not fall under Civil Rights Law § 51’s narrow definitions of “advertising” or “trade.” See id. Instead, the Court held, the “video game’s unique story, characters, dialogue, and environment, combined with the player’s ability to choose how to proceed in the game, render it a work of fiction and satire,” which is protected under the statute and the First Amendment. Id.
Ready to speak on the scope and extent of Civil Rights Law § 51’s right to privacy, the Court of Appeals will hear arguments on the issue today. Now, we can only hope that the stars will join their depictions in front of the Court for oral argument.
The Appellate Division, First Department’s order can be found here.
New York Appeals 
With regard the CRL §51 claim (even without having personally seen the renditions), given the context outlined above, I tend to agree with the 1st Dep’t’s analysis that the GTA depictions would fall under the 1st Amend., thus defeating the appropriation COA. I also wonder if game purchasers are made aware of the depictions prior to purchasing the game, which could go to whether the alleged appropriation was intended to entice sales of the game under the plain meaning of “advertising” or “trade” under CRL §51. Interesting case!
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At argument, the Judges focused heavily on how the depictions were used in GTA V. They aren’t characters in the game but are used in the transition scenes between missions, and then Lohan was on the cover of one of the game versions apparently. I think the court will come down that this is protected satire under the First Amendment, but it’s a close case because it’s just at the pleading stage. The ultimate First Amendment question might not come into play if the allegations are sufficiently pled. We’ll see!
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