In Gravano v. Take-Two Interactive Software, Inc., 2016 NY Slip Op 05942 (App. Div. 1st Dept. Sept. 1, 2016), the court held that the claims asserted by plaintiffs Lindsay Lohan and Karen Gravano against the makers of the “Grand Theft Auto V” video game under New York Civil Rights Law § 51 should have been dismissed.
Ms. Lohan argued, among other things, that “defendants used a look-alike model to evoke Lohan’s persona and image” and 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.”
The court explained why plaintiffs’ claims failed:
Both Gravano’s and Lohan’s respective causes of action under Civil Rights Law § 51 “must fail because defendants did not use [plaintiffs’] name, portrait, or picture'” (see Costanza v Seinfeld , 279 AD2d 255, 255 [1st Dept 2001], citing Wojtowicz v Delacorte Press , 43 NY2d 858, 860 ). Despite Gravano’s contention that the video game depicts her, 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 (see Costanza at 255; see generally Wojtowicz at 860). As to Lohan’s claim that an avatar in the video game is she and that her image is used in various images, 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 (see Costanza at 255).
Even if we accept plaintiffs’ contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs’ claims should be dismissed because this video game does not fall under the statutory definitions of “advertising” or “trade” (see Costanza at 255, citing Hampton v Guare , 195 AD2d 366, 366 [1st Dept 1993], lv denied 82 NY2d 659  [stating that “works of fiction and satire do not fall within the narrow scope of the statutory phrases advertising’ and trade'”]; see generally Brown v Entertainment Merchants Assn. , 564 US 786, 790  [“(l)ike the protected books, plays, and movies that preceded them, video games communicate ideas . . .” and deserve First Amendment protection]). This 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.
Further, Lohan’s claim that her image was used in advertising materials for the video game should also be dismissed. The images are not of Lohan herself, but merely the avatar in the game that Lohan claims is a depiction of her.