ALLEGED DEPICTIONS OF PLAINTIFFS IN A VIDEO GAME NOT PROHIBITED BY THE CIVIL RIGHTS LAW.

The Second Department determined the Civil Rights Law did not apply to a video game which was alleged to have been based upon depictions of the plaintiffs Karen Gravano and Lindsay Lohan. The statute prohibits the unauthorized of one’s name, portrait or picture in advertising or trade:

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'” … . 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 … . 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 … .

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” … . Gravano v Take-Two Interactive Software, Inc., 2016 NY Slip Op 05942, 1st Dept 9-1-16

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