## Facts

- Take-Two Interactive Software and affiliates developed and marketed *Grand Theft Auto V* (GTAV), a fictional, satirical action-adventure game set in “San Andreas,” including the city “Los Santos.”
- The game includes a “random event” mission, “Escape Paparazzi,” featuring a non-playable character named Lacey Jonas, described in-game as an “actress slash singer” and “the voice of a generation,” who claims to be famous and is associated with romantic comedies and a “cheerleader dance-off movie.”
- GTAV also uses stylized loading-screen (“transition screen”) artwork and related promotional imagery, including: (1) a blonde woman being frisked by a police officer (“Stop and Frisk” image), and (2) a blonde woman in a red bikini taking a cellphone selfie.
- Lindsay Lohan alleged the Lacey Jonas character misappropriated her likeness and that the artwork and promotional materials, individually and cumulatively, used her image and identity without consent.
- Lohan sued under New York Civil Rights Law §§ 50 and 51, which restrict nonconsensual use of a living person’s “name, portrait, picture or voice” for advertising or trade purposes.
- The trial court denied defendants’ motion to dismiss; the Appellate Division reversed and dismissed for failure to state a claim; the Court of Appeals reviewed and affirmed dismissal.

## Issues

1. Whether a computer-generated avatar or digital image can qualify as a “portrait” under New York Civil Rights Law §§ 50 and 51.
2. If so, whether the challenged character and images were sufficiently recognizable as Lindsay Lohan to constitute use of her “portrait” or “picture” for advertising or trade purposes.

## Decision

- The Court of Appeals affirmed the dismissal of the amended complaint for failure to state a claim.
- The court held that a computer-generated image may constitute a “portrait” within the meaning of Civil Rights Law §§ 50 and 51.
- Applying the statute’s recognizability requirement, the court concluded the Lacey Jonas character and the loading-screen/promotional images were not recognizable as Lindsay Lohan.
- Because the depictions were not “of” Lohan, her §§ 50–51 causes of action were properly dismissed.

## Legal Principles

- New York Civil Rights Law §§ 50 and 51 provide a limited statutory privacy remedy for nonconsensual use of a living person’s “name, portrait, picture or voice” for advertising or trade purposes.
- “Portrait” is not limited to photographs; it can include non-photographic representations, including computer-generated images, if the depiction is a likeness of the plaintiff.
- Liability requires that the challenged depiction be reasonably recognizable as the plaintiff; generalized celebrity attributes or an alleged evocation of “persona” is insufficient absent a recognizable statutory identifier.
- The statute does not create a free-standing right against use of a celebrity “persona” apart from name, portrait, picture, or voice.

## Conclusion

New York’s highest court held that digital avatars and computer-generated images may fall within the statutory term “portrait,” but rejected liability where the video-game character and artwork were generic and not recognizable as Lindsay Lohan, warranting dismissal under Civil Rights Law §§ 50–51.


Lohan v. Take-Two Interactive Software, Inc., 97 N.E.3d 389 (N.Y. 2018)