By: Chris Freiberg
J.D. Candidate, 2015
Manuel Noriega, the former dictator of Panama, is currently serving a 20-year prison sentence there for murder and human rights abuses.
U.S. courts convicted him of drug trafficking and racketeering and France, convicted him in absentia of murder and money laundering. He’s probably going to spend the rest of his life in prison.
But what has Noriega really upset these days is that his likeness appeared in a video game that referred to him as “old pineapple face himself, Manuel Noriega.”
Noriega appeared throughout the 2012 Activision game “Call of Duty II: Black Ops,” both fighting alongside the player and in a mission where the player captures him, much like his real-life arrest in 1990.
The “Call of Duty” is a franchise of billion dollar games where no one actually plays the single-player (the only part of the game where Noriega appears). Instead, players go online to shoot each other in the face as teenagers hurl racial epithets and claim to have a personal relationship with your mother.
Noriega’s lawsuit, filed earlier this year in Los Angeles Superior Court, claimed that Activision portrayed him “as a kidnapper, murderer and enemy of the state,” which may not be far from the truth.
Because of this negative portrayal, Noriega was seeking punitive damages, alleging that Activision used his “likeness to increase revenues and royalties, at the expense of plaintiff and without the consent of plaintiff.”
Apparently there was such high demand to play a game featuring Manuel Noriega? He may have a point here. One million people evidently want a game that simulates being a goat.
Not surprising, Activision is fighting Noriega’s suit, even going so far as to hire the firm of former New York City mayor Rudy Giuliani.
Noriega’s lawsuit is based on “the right of publicity,” a state-based quilt of laws that basically allow every individual to control commercial use of their image.
Although California, where Noriega filed his suit, has a great deal of law on the right of publicity because it’s the center of the entertainment industry, Indiana actually may have the farthest reaching statute. It protects the right of publicity for 100 years after death, and protects “name, image and likeness,” as well as “signature, photograph, gestures, distinctive appearances, and mannerisms.” Thus, Indiana law is far more inclusive than California law.
So, if California tosses Noriega’s lawsuit, he may want to consider re-filing it in the Hoosier state.
But perhaps the most absurd thing about a lawsuit over a game that *spoilers no one cares about *ends with a musical number from barely relevant alt-rock band Avenged Sevenfold, and has pitted an octogenarian former drug kingpin against a man who was spectacularly bad at running for president, is that Noriega may ultimately win.
As The Washington Post reported this summer, some California courts have found that “transformative works” where the celebrity’s likeness is only part of a raw material that is synthesized into a larger work are protected.
If a court were to adopt this test, Noriega’s lawsuit would likely be dismissed, or he’ll eventually lose. While he is included in “Black Ops 2,” he’s really just a small part of it compared to the rest of the campaign and being able to shoot a zombified George Romero.
Other California courts have found “transformative works” are not protected when they include a person’s attributes.
This test would actually help Noriega, because his portrayal in the game as the pineapple-faced dictator of Panama and an all-around terrible person draws on well-known attributes.
In Keller v. EA Sports, a 2013 Ninth Circuit Court of Appeals case in which a former college football player sued another video game manufacturer, Electronic Arts (“EA”) for misappropriation of his likeness in its football games, the court ruled in favor of Keller.
EA’s NCAA games, which the company announced it would no longer develop following the ruling, didn’t even include the names of players – only their height, weight and jersey number, among other attributes.
“EA’s use of Keller’s likeness does not contain significant transformative elements such that EA is entitled to the defense as a matter of law…” the court wrote in its opinion. “As the district court found, Keller is represented as ‘what he was: the starting quarterback for Arizona State’ and Nebraska, and ‘the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field.’”
An appellate court could consider a broader rule that would afford less protections to political figures such as Noriega, but given the rather on-point nature of the Keller precedent, Activision might want to get its checkbook ready.