Los Angeles Judge Tosses Ex-Dictator's ‘Call of Duty’ Lawsuit Over Use of Likeness

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By David McAfee

Any rights former Panamanian dictator Manuel Noriega might have in his persona were outweighed by a video game company's free speech rights, according to a ruling by the California Superior Court for the County of Los Angeles, which dismissed Noriega's right of publicity claims over his appearance as a character in a “Call of Duty” game.

The court dismissed with prejudice Noriega's claims, which Activision had previously called “absurd.” Former New York Mayor Rudolph W. Giuliani led Activision's legal team.

“This ruling is an important victory and we thank the court for protecting free speech,” Giuliani said in a statement. “This was an absurd lawsuit from the very beginning and we're gratified that in the end, a notorious criminal didn't win. This is not just a win for the makers of Call of Duty, but is a victory for works of art across the entertainment and publishing industries throughout the world.”

Noriega's Allegations

Noriega, a soldier who had cooperated with the Central Intelligence Agency since the late 1950s, and who became ruler of Panama in 1983 with the assistance of the U.S. government, was removed from power in a 1989 U.S. invasion of the country.

U.S. authorities charged Noriega in connection with drug crimes and in 1992, he was convicted of narcotics trafficking and racketeering and sentenced to 40 years in prison.

Activision's “Call of Duty: Black Ops II” depicted Noriega as a character in the game, as a perpetrator of fictional criminal activity. In July, he sued Activision, alleging unjust enrichment, unfair business practices and other claims.

Noriega further said the game company's use of his character in the game had damaged his reputation and constituted misappropriation of his image and likeness for financial gain.

Activision Moves to Strike

Attorneys for Activision filed a motion to strike the complaint under California's anti-SLAPP statute on Sept. 22, saying that the “minor inclusion” of Noriega's character in “Call of Duty: Black Ops II” was protected free speech.

Transformative Use

The court found that in depicting Noriega, Activision was depicting a version of a “notorious public figure.” The court concluded that company's use of Noriega's likeness was transformative because, while publicly available photos were used to create the character, Noriega's depiction was not the “very sum and substance” of the work.

“The complex and multi-faceted game is a product of defendants' own expression, with de minimis use of Noriega's likeness,” the court said. “Because the game is transformative, economic considerations are not relevant.”

The court said that inclusion of the Noriega character in the game was not the factor that made the game marketable or formed the basis of its economic value. The value, according to the court, came from “the creativity, skill and reputation of defendants.”

The court also found that Noriega had failed to offer any evidence that the game had harmed his reputation, saying that, “given the world-wide reporting of his actions in the 1980's and early 1990's, it is hard to imagine that any such evidence exists.”

Representatives for Noriega did not immediately return requests for comment on Oct. 29.

The court's ruling was issued by Judge William H. Fahey. Noriega was represented by Girardi Keese, Los Angeles. Activision was represented by Bracewell & Giuliani LLP, New York.

To contact the reporter on this story: David McAfee in Los Angeles at dmcafee@bna.com

To contact the editor responsible for this story: Tom P. Taylor at ttaylor@bna.com

Full text at http://pub.bna.com/ptcj/noriegaorder.pdf.