Access practice tools, as well as industry leading news, customizable alerts, dockets, and primary content, including a comprehensive collection of case law, dockets, and regulations. Leverage...
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, 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.
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.
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 email@example.com
To contact the editor responsible for this story: Tom P. Taylor at firstname.lastname@example.org
Full text at http://pub.bna.com/ptcj/noriegaorder.pdf.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)