Former Dictator’s Right of Publicity Suit Against Call of Duty Makers Dead on Arrival
Headline: On October 27, 2015, the Superior Court of California, County of Los Angeles granted defendants’ special motion to strike plaintiff—and former Panamanian dictator—Manuel Noriega’s right of publicity suit based on his depiction in Call of Duty: Black Ops II.
Background: Defendants’ Call of Duty franchise is a widely popular first-person shooter game where players progress through the game by completing various combat missions. In the Black Ops II version of the game, the objective of one mission—dubbed “Operation Just Cause”—is to capture or kill Manuel Noriega, depicted as a corrupt dictator operating a drug cartel in the game. In real life, Noriega is serving a 20-year sentence in a prison in Panama for murder and money laundering. From there, he filed a lawsuit in July 2014 against Activision and others in California state court, alleging violations of his statutory and common law rights of publicity, among other claims, for the use of his likeness in Black Ops II. Defendants filed a special motion to strike under California’s anti-SLAPP law, arguing First Amendment protection.
Holding: The Court held that defendants’ First Amendment right to free expression outweighed Noriega’s right of publicity. The Court first concluded based on the uncontroverted evidence that Noriega was a notorious public figure, and noted that Noriega failed to provide any evidence of harm to his reputation, stating that given the reporting of his egregious actions, “it is hard to imagine any such evidence exits.” The Court determined that defendants’ use of Noriega’s likeness was transformative because Noriega’s depiction in Black Ops II was a synthesis of publicly available photos and more the product of defendants’ own expression, “with de minimis use of Noriega’s likeness.” The Court also noted that, while irrelevant given its transformative finding, the value of the Black Ops II comes from the creativity, skill and reputation of defendants, not from Noriega.
Practical Takeaways: The Court was likely influenced by the identity of the particular plaintiff here – a convicted murder and former dictator, so game companies should take caution relying on this decision as carte blanche to use the likeness of individuals in their games. That said, game companies may have more freedom accurately depicting notorious individuals with negative reputations because Court’s are less likely to be sympathetic to their claims and they, like Noriega, are unlikely to be able to show any harm to their reputation and thus any damages.
A copy of the order on defendants’ special motion to strike in Noriega v. Activision/Blizzard, Inc., et al., Case No. BC551747 (Cal. Sup. Ct.) is located here.
By Ryan Tyz, the “Straight Shooter”