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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 recently granted Lohan and Gravano leave to appeal the dismissal of their suits against Take-Two. 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.