Video game publisher Activision Blizzard, maker of such popular video games as World of Warcraft and Diablo, is being sued by Panama’s former military dictator, Manuel Noriega. Noriega filed suit in July of this year in Los Angeles County Superior Court, claiming that the powerhouse publisher had used his name and likeness without his permission in its game Call of Duty: Black Ops II, and thus violated his Right of Publicity.
The Right of Publicity concerns a person’s power to control the commercial use of his or her own identity, typically in terms of name, image, and likeness. Depending on the state, these property interests can also be extended to an individual’s voice, signature, photograph, gestures or mannerisms.
Noriega, who was removed from his status as Panama’s dictator when the U.S. invaded in 1989, claims that he is being defamed because the game wrongfully depicts him as “the culprit of numerous fictional heinous crimes” including being “a kidnapper, murderer and enemy of the state.” The 80 year old former dictator has spent nearly the past two decades in U.S. prison after being convicted of drug trafficking, racketeering, money laundering, and murdering political opponents.
In order to fend off the lawsuit, in late September Activision engaged the services of former New York City mayor Rudy Giuliani. Giuliani, who is now a name partner at the law firm Bracewell & Giuliani, will serve as Activision’s co-counsel. The Santa Monica company plans to file a motion to dismiss on the grounds that the former military dictator’s fame derives from his being a political figure, rather than from his creative labor, and thus should be protected under the First Amendment.
Giuliani has described the litigation as “absurd” and “an outrageous lawsuit by one of the worst criminals of the last 50 years.” “This man was convicted in the United States, he was convicted in France, he was convicted in Panama of killing his own people. I am so offended by the fact that this man is trying to seek millions and millions of dollars from a company that makes ‘Call of Duty,’ that is a good, decent American company.”
In addition to claiming that speech about the dictator should be protected due to his status as a public figure, Giuliani also notes that Noriega’s presence in the game is minor.
Giuliani and Activision further argue that, should Noriega’s suit succeed, a floodgate of litigation will ensue, as the portrayal of real figures in all works of historical fiction will become inherently suspect, reaching far beyond the realm of video games and spelling the end for such beloved American content as Forrest Gump and Saturday Night Live. “Games, movies and books are considered the same, according to the United States Supreme Court for free speech purposes, so it would destroy to a very, very large extent the creative genre of historical fiction.”
Historically, the First Amendment has provided artists a wide berth in their depiction of public figures, as the ability to check institutional forces is one of the primary purposes of freedom of speech. In cases of current politicians, there is little contention. However, the line between public and private begins to blur with figures like Noriega who were formerly politicians, but are now no longer. This distinction is similarly complicated in the case of celebrities, who are not public servants but have to some degree voluntarily inserted themselves into the public eye.
This lawsuit is only the most recent in a string of Right of Publicity litigation focused on digital content and real individuals being portrayed therein. This year the National Collegiate Athletic Association and Electronic Arts settled for $60 million dollars as a result of their virtual portrayal of college athletes in video games. Lindsay Lohan has also filed suit against Rockstar Games for their allegedly defamatory portrayal of her in their game Grand Theft Auto: V, which features an anorexic, narcissistic actress called “Lacey Jonas.”
As technology continues to develop it will only become easier to create lifelike representations of real people. Consequently, lawsuits stemming from digital likeness infringement are only projected to become more common in the future.