A lawsuit has been filed in Los Angeles Superior Court by former Panamanian dictator Manuel Noriega against Activision Entertainment on July 15. Noriega is claiming that his portrayal by Activision in Call of Duty: Black Ops 2 is a “blatant misuse, unlawful exploitation and misappropriation for economic gain” of his likeness.
The Facts:
This use of his likeness was done in such a way that he appeared to be ‘a kidnapper, murderer and enemy of the state.’In CoD:BlOps2, Noriega appears, looking very much like his real-life self, to aid the player at first. He then turns on them and the player is forced to hunt him down. Noriega claims in his lawsuit that “In an effort to increase the popularity and revenue generated by BLACK OPS II, defendants used, without authorization or consent, the image and likeness of plaintiff in BLACK OPS II.”
This use of his likeness was done in such a way that he appeared to be “a kidnapper, murderer and enemy of the state.” Additionally, he was an “antagonist and portrayed as the culprit of numerous fictional heinous crimes, creating the false impression that defendants are authorized to use plaintiff’s image and likeness.”
The Case:
While one legal commentator in the UK doubts that Noriega could even sue in Los Angeles due to his Panamanian citizenship, I’m not sure I agree.
I’m no international attorney, but I think that the venue is correct, since Los Angeles is most likely Activision’s principal place of business (even though they are incorporated in Delaware). Another issue may be Noriega’s status as a prisoner, which could preclude damages. That’s not my area of expertise, so we’ll look at the hypothetical situation that this does go to trial.
The Right of Publicity:
I haven’t seen the complaint, but Noriega is most likely suing under California’s Right of Publicity statute. This is the same type of law that Lindsay Lohan is suing under (but that was in NY).
Under the terms of the statute, “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products…without such person’s prior consent…shall be liable for any damages sustained by the person or persons injured as a result thereof.”
The California Supreme Court looked at the Right of Publicity in Comedy III Productions v. Saderup.
In that case, they stated, “When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist.”
Activision’s affirmative defense – Transformative Use:
However, if the use of the person’s likeness is ‘transformative’ enough, the First Amendment trumps any right of publicity.It seems pretty clear that Activision HAS used Noriega’s likeness. However, if the use of the person’s likeness is “transformative” enough, the First Amendment trumps any right of publicity.
What counts as transformative? In the case I mentioned above, the Court held that “whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness. And when we use the word “expression,” we mean expression of something other than the likeness of the celebrity.”
Even though they recreated him digitally, this is no defense. For instance, see the Hart v. EA case, where EA tried to argue that this was a transformative use. It was dismissed by a 3rd Circuit judge, who said that “ecreating a celebrity’s likeness or identity in some medium other than photographs or video cannot, without more, satisfy the test.”
However, by creating a fictionalized version of non-fictional events, they have a good case for proving that they’ve elevated the material beyond the threshold for transformative use. If you’re interested in more on the analysis that courts do in cases like this, check out:
California Anti-SLAPP motions:
If successful, the defendant could be entitled to any attorneys’ fees and other costs associated with defending against the lawsuit.In cases where a lawsuit is filed that stifles free speech, California allows defendants to file an Anti-SLAPP motion. If successful, the defendant could be entitled to any attorneys’ fees and other costs associated with defending against the lawsuit. This could potentially be applicable here, if they can show transformative use at the outset, and avoid a lengthy trial.
If you are beginning a game development project, and have questions about right of publicity, contracts or any other issues, why not contact a game lawyer? I am available for a free consultation to discuss the issues facing developers and develop a strategy to take care of game dev legal needs.
