Manuel Noriega Can’t Dictate the Law, But He May Die Trying
“Noriega’s ignominious exploits justly earned him multiple prison sentences (including his current incarceration in Panama), along with a well-deserved place of infamy in history’s rogues’ gallery of murderous tyrants.”[i] Now an 80-year old resident of a Panamanian prison cell, the former dictator and heinously historic criminal has a new conquest: unspecified restitution from Activision for use of his likeness.
Many prisoners study the law to build an argument for their release, but Panama’s former dictator has been busy crafting a right of publicity suit against Activision. The issue? Activision’s infamous game COD: Black Ops II (that’s “Call of Duty” for you non-gamers).
According to Noriega, Activision’s use of his likeness has caused damage by portraying the former dictator as a criminal and the culprit of numerous fictional crimes, allegedly enabling Activision to receive profits they would have otherwise not earned.[ii]
Right of publicity essentially provides individuals the right to control commercial use of their identity; traditionally, identity is described by a person’s name, voice, or likeness. The basic requirements for right of publicity argument include: 1) a person knowingly used another’s name, voice, signature, photograph, or likeness; 2) in any manner, on or in products, or for purposes of advertising or selling, or soliciting purchases of products, goods, or services; 3) without such person’s prior consent. If the above three elements are met, the injured party is entitled to damages sustained as a result. The one exception is when use is in connection with any news, public affairs, sports broadcast or account, or political campaign.
Although I find this case ridiculous on many fronts, Noriega may well have a good argument. He is clearly depicted in 2 out of the 11 missions in Black Ops II; his character is true to form in physical appearance as well as moral turpitude, and he is referenced by his apt, real-life nickname of “Pineapple Face.”[iii] In fact, the depiction is similar enough to him that Pappy Noriega supposedly had to explain to his grandkids why their mission in Black Ops II was to hunt down and capture him (just imagine that conversation).[iv] Moreover, given the popularity and cult-like following the franchise has established, Activision has obviously made a pretty penny from the game. Noriega’s legal team is arguing that Call of Duty has gained marketability based on its realism and that the realistic depiction of the ex-dictator further adds to that.
Activision has a great argument as well: the First Amendment right to free speech. It’s tough to argue against the United Sates Constitution, even from a dank Panamanian prison cell. Activision’s legal team also includes Rudy Giuliani, the former New York City Mayor and presidential hopeful who is not about to let a convicted murderer “trample the rights of free speech as he trampled the rights of his own people.”[v] Even beyond that, a win by Noriega would give historical and political figures (and, yes, even ruthless criminals) the right to control works of art.
The right of publicity certainly protects the creative labor that goes into making a celebrity famous. However, Activision argues, and I agree, “Noriega’s claims have nothing to do with vindicating fruits of artistic labor or any other activity with some social utility.”[vi] The former dictator’s claim to fame is merely based on his historical and contemptible acts of aggression. Noriega is no celebrity; the major historical events he caused are what give rise to his notoriety, certainly through no creative labor on his part.
With celebrities, California courts have evaluated right of publicity using the “transformative use test”. As enunciated by the California Supreme Court, the transformative use test focuses on whether “the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist”, and whether the depiction in question is the very sum and substance of the work.[vii] So does protection of Noriega’s claim to fame of being a reprehensible aggressor outweigh Activision’s artistic expression, and is the former dictator’s character a large part of the substance of the game? Perhaps.
Unfortunately for Noriega, the court may never get around to evaluating his case under “transformative use” because he is, contrary to his wishful thinking, no celebrity. He does, however, fit the definition of being a historical figure. According to a California Supreme Court majority opinion, the right of publicity likely cannot be used to censor fictional accounts about a historical figure’s place in history.[viii] That would not bode well for Prisoner Noriega.
Regardless of the outcome of Noriega’s case, right of publicity continues to be a hot topic with video games. Two cases in point are Lindsay Lohan’s recent suit over her depiction in Grand Theft Auto and claims regarding depiction of college athletes in EA Sports Games. Noriega’s case varies in context from these examples, mainly given the historical facts argument, but the ruling of the court will be an important one regarding artistic expression in video games and the depiction of historical figures. Rudy Giuliani asserts that Noriega’s suit “is a violation of right of free speech and is making mockery of the American legal system.”[ix] We will see if the court agrees. In the meantime, happy hunting!
[i] Manuel Noriega v. Activision Blizzard, Inc. https://s.activision.com/press/games/documents/MEMO%20OF%20POINTS%20AND%20AUTHORITIES%20IN%20SUPPORT%20OF%20DEFENDANTS%E2%80%99%20SPECIAL%20MOTION%20TO%20STRIKE%20PLAINTIFF’S%20COMPLAINT%20UNDER%20THE%20CALIFORNIA%20ANTI-SLAPP%20STATUTE,%20CIV.%20PROC.%20CODE%20%C2%A7%C2%A7%20425.16,%20ET%20SEQ..pdf
[vi] Manuel Noriega v. Activision Blizzard, Inc. https://www.scribd.com/doc/240607322/Noriega
[vii] Comedy Three Productions, Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 407 (Cal. 2001)
[viii] Gugliemli v. Spelling—Goldberg Prods.(1979) 25 Cal.3d860