Gravano v. Take-Two Interactive Software, Inc.

97 N.E.3d 396, 73 N.Y.S.3d 787, 31 N.Y.3d 988

Opinion

MEMORANDUM.

The order of the Appellate Division, insofar as appealed from, should be affirmed, with costs. A computer-generated image may constitute a "portrait" within the meaning of Civil Rights Law §§ 50 and 51 *397**788(see Lohan v. Take-Two Interactive Software , 31 N.Y.3d 111, 121-122, 73 N.Y.S.3d 780, 97 N.E.3d 389 [2018] [ decided herewith] ). Plaintiff, however, is not recognizable from the images at issue here, namely, the "Andrea Bottino" avatar in the video game in question (see Cohen v. Herbal Concepts , 63 N.Y.2d 379, 384, 482 N.Y.S.2d 457, 472 N.E.2d 307 [1984] ).

In view of our determination, we do not address plaintiff's additional contentions.

Order, insofar as appealed from, affirmed, with costs, in a memorandum.

Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and Feinman concur. Judge Wilson took no part.