Gravano v. Take-Two: Right of Publicity

New York's highest court held that even a video-game character built from a reality star's biography is not actionable when the avatar is not recognizable as her.

Decided the same day as its more famous companion, Gravano v. Take-Two Interactive Software, Inc., 2018 NY Slip Op 02207 (N.Y. Ct. App. Mar. 29, 2018), is in some ways the harder and more instructive case. Karen Gravano (a star of the reality series Mob Wives and the daughter of Salvatore “Sammy the Bull” Gravano) argued that the Grand Theft Auto V character “Antonia Bottino” (whom her complaint and the courts referred to as “Andrea Bottino”) was lifted from her life: Antonia’s father is a mob underboss turned government informant who enters witness protection and moves the family out west, and Antonia’s father does not want her appearing on a Mob Wives parody called “Wise Bitches.” The biographical overlap was real and detailed. The New York Court of Appeals affirmed dismissal anyway, holding that the avatar was not recognizable as Gravano. The case crystallizes a crucial limit of New York’s likeness statute: it protects your portrait, not your story.

At a glance

Case: Gravano v. Take-Two Interactive Software, Inc., 2018 NY Slip Op 02207; 31 N.Y.3d 988 (Mar. 29, 2018) (decided with Lohan v. Take-Two).
Court: New York Court of Appeals.
Issue: Whether using a reality star’s biographical details to build a game character violates N.Y. Civil Rights Law §§ 50–51 where the avatar is not visually recognizable as her.
Holding: Affirmed, with costs. Although a computer-generated image “may constitute a ‘portrait’ within the meaning of Civil Rights Law §§ 50 and 51,” Gravano “is not recognizable from the images at issue here, namely, the ‘Andrea Bottino’ avatar”; biographical similarity alone does not satisfy the statute.
Why it matters: It confirms that New York’s narrow statutory right reaches only recognizable depictions of the enumerated attributes. It does not reach life-story appropriation, themes, or persona in the abstract.

The closest case of life-story borrowing

What makes Gravano analytically richer than Lohan is how much the defendants apparently took. Antonia Bottino is the daughter of “Sammy Bottino,” a former Gambetti crime-family underboss who becomes an informant. That is an unmistakable echo of Sammy “the Bull” Gravano, who famously cooperated against John Gotti. The in-game family relocates and lives under witness protection, mirroring the Gravanos’ real trajectory. And the script’s reference to “Wise Bitches” is a transparent send-up of Mob Wives, the show that made Karen Gravano a public figure.

A plaintiff could be forgiven for thinking that volume of parallels must add up to a claim. The Court of Appeals said it does not, and the reason illuminates the architecture of New York law.

Why biography is not a “portrait”

Civil Rights Law §§ 50–51 protect a person’s “name, portrait, picture or voice.” That list is exhaustive. It does not include a person’s life story, their reputation, their identity in the broad sense recognized in some other jurisdictions, or their status as a cultural figure. New York deliberately declined to adopt the kind of expansive “identity” appropriation theory associated with cases like White v. Samsung in the Ninth Circuit. The statute is a privacy provision turned commercial-protection tool, and it guards specific, enumerated attributes.

Gravano did not claim the game used her name (it did not; the character is “Antonia Bottino”) or her actual voice. Her real theory was that the character (its backstory and biography) was her. But a backstory is not a “portrait” or a “picture.” To prevail on the only viable statutory hook, the rendered image, Gravano had to show that the visual depiction was recognizable as her. The court found it was not. Its entire analysis fits in a sentence: Gravano “is not recognizable from the images at issue here, namely, the ‘Andrea Bottino’ avatar in the video game in question.” In the companion Lohan opinion, the court described the game’s renderings as “indistinct, satirical representations” of a style and persona rather than recognizable likenesses.

This is the doctrinal heart of the decision: §51 polices the use of the image or named identity, not the use of facts about a life. A docudrama, a roman à clef, or a satirical game can mine real biographies (even very specific ones) without triggering the statute, so long as the protected attributes (name, recognizable portrait, picture, voice) are not appropriated for trade. Where biography is the grievance, New York privacy/publicity law is largely a dead end; the plaintiff’s recourse, if any, lies in defamation or false-light-adjacent theories that carry their own demanding elements.

Satire, fiction, and the “trade” limit

The satire framing belongs to the court below, not to the Court of Appeals, and the distinction matters. The First Department held in 2016 that even accepting that the depictions were close enough to be considered representations of the plaintiffs, the claims failed because Grand Theft Auto V “does not fall under the statutory definitions of ‘advertising’ or ‘trade’”: the 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.” Gravano v. Take-Two Interactive Software, Inc., 142 A.D.3d 776 (1st Dep’t 2016). That is a sprawling fiction lampooning American archetypes: the celebrity, the gangster, the reality-TV personality.

The Court of Appeals never reached that ground. Its memorandum rests on recognizability alone and ends by saying that, in view of that determination, it does not address Gravano’s additional contentions; the Lohan opinion likewise expressly declined to address the “advertising” and “trade” elements. So the trade boundary stands as the First Department drew it, undisturbed but not endorsed by the state’s highest court.

For the influencer economy, this is significant. Reality stars and social-media personalities are, almost by definition, people whose biographies are their product. Gravano tells them that New York law will not convert that biography into a property right enforceable against fiction and satire. The protectable core remains narrow: the recognizable face, the actual name, the real voice, used to sell or to advertise.

Open questions

Could a name plus biography change the result? Antonia Bottino was not named “Karen Gravano.” Had the game used her actual name alongside the biography, the §51 “name” prong might have been squarely in play, a scenario the decision did not have to resolve.
Where does satire end and appropriation begin? The First Department leaned heavily on the satirical, fictional nature of the work, and the Court of Appeals never reached the “advertising or trade” question. A non-satirical commercial product that borrowed the same biography for trade would test a boundary the higher court left untouched.
Is there any New York remedy for life-story taking? Gravano forecloses §51 for biography-only claims, but leaves unaddressed whether and when other torts could fill the gap for someone whose distinctive life is mined without consent.

Implications

For studios and writers: Drawing characters from real biographies is broadly defensible in New York, especially within satirical or clearly fictional works, provided you avoid the actual name, a recognizable portrait, or the real voice.
For reality stars and influencers: Your life story is not protected by New York’s likeness statute. Recognizability of your image, not the borrowing of your narrative, is the battleground.
For comparative strategy: Plaintiffs with biography-driven grievances may fare better under the broader “identity” theories of jurisdictions like California, making forum and choice-of-law analysis decisive.
For risk review: The safest line for content teams is to keep names invented and renderings generic; biographical inspiration is far lower-risk than a named, recognizable likeness used in trade.

Frequently asked questions

Gravano’s life story was clearly used, so why did she lose? Because New York Civil Rights Law §§ 50–51 protect only a person’s name, portrait, picture, or voice. They do not protect a life story. The character did not use Gravano’s name or voice, and the court found the avatar was not recognizable as her, so the borrowed biography alone could not support a claim.

Is this different from the Lohan decision? It is the companion case, decided the same day under the same rule. Lohan turned on a character built from a lifestyle and look; Gravano turned on a character built from a detailed biography. Both failed on recognizability, but Gravano more sharply establishes that biography is not a protected attribute.

Would using Gravano’s actual name have mattered? Potentially. The statute separately protects “name,” and the game used the invented name “Antonia Bottino.” Pairing a real name with the biography would have raised a different question the court did not decide.