A Blog by Jonathan Low

 

Jul 22, 2014

Games People Play: Deposed Dictator Manuel Noriega Sues 'Call of Duty' Game for Exploitation of His Image

Memo to game makers: uh yeah, so this whole image value thing seems to be getting, like, serious.

First it was relatively unknown college athletes demanding royalties for the use of their images on games like EA Sports' NCAA College Football game. Then it was aging child actress Lindsay Lohan suing Grand Theft Auto because in the latest version there is a character who bears a more than casual likeness to her.

So in terms of popular entertainment, we have sports and entertainment covered. What's left? Oh, that's right! Politics. So prototypical Central American dictator Manuel Noriega, formerly the supreme leader of Panama but currently serving 20 years in Panamanian prison for various crimes against the state, is now suing Activision, maker of the Call of Duty shooter game, for misappropriating his image and likeness for profit.

No virtuoso cellists or Nobel prize winning astrophysicists have yet sued game makers, but they cant be far behind. To say nothing of pizza makers, cocktail mixologists and celebrity masseuses. This is a wake-up call not just for the gaming industry, but for the entire tech field. To the extent that anyone thinks their personal data has value, they are going to file a lawsuit demanding a piece of the action. And who can blame them? Hey, even evil drug-dealing dictators have commercial interests. Why should all the loot go to game industry geeks and their venture capitalists? The free data party's over folks. JL

Blake Brittain reports in Bloomberg:

The game has sold nearly 25 million copies worldwide, and Noriega is seeking lost profits and damages for "blatant misuse, unlawful exploitation and misappropriation for economic gain.

In a surprising move by a notorious ex-dictator, Panama's Manuel Noriega sued video game makers Activision Inc. in Los Angeles Superior Court for infringing his right of publicity in an installment of Activision's wildly popular "Call of Duty" series. Noriega filed the suit from a Panamanian prison.  
Noriega is part of the plot in 2012's "Call of Duty: Black Ops II," where the Noriega character assists the game's antagonist, a Panamanian anti-American revolutionary who rises to power in 2025.   
 
The game has sold nearly 25 million copies worldwide, and Noriega is seeking lost profits and damages for "blatant misuse, unlawful exploitation and misappropriation for economic gain." Noriega claims Activision used his likeness "to heighten realism in [the] game,” which includes a zombie-killing mode and a scene in which the villain attacks Los Angeles with the entire U.S. drone fleet. 
 
It sounds a bit ridiculous in that context, but in fact, Noriega may have a legitimate argument. 

The Right of Publicity in Video Games
 
Noriega's suit is part of a string of high-profile cases involving video game likenesses of real people. In the most famous of these suits, Keller v. NCAA, a number of former collegiate athletes sued the NCAA in a 2009 right of publicity case for using their likenesses without their authorization in its "NCAA Football" video games. Former Arizona State quarterback Sam Keller won because, according to the court, EA's use of his likeness was not transformative (86 PTCJ 681, 8/2/13).
Keller focused on another video game likeness case, No Doubt v. Activision Publishing Inc (81 PTCJ 532, 2/25/11). No Doubt, a famous California rock band, had licensed the use of its likeness to Activision for the game "Band Hero," a music simulator game. The game featured the band's likeness playing virtual concerts. No Doubt claimed that Activision had exceeded the scope of its license, however, when the bands' likenesses played other artists' songs in the game. The court ruled for No Doubt on its right of publicity claim, also based on the fact that the use of the band's likeness had not been transformative.
Transformativeness 
Attorneys Kent R. Raygor and Valerie E. Alter, of Sheppard Mullin Richter & Hampton LLP in Century City, Calif., wrote a piece for Bloomberg BNA following the Ninth Circuit's ruling in Keller (86 PTCJ 1100, 9/27/13). As they noted, Keller and similar video game right of publicity cases focus on whether the use of a person's likeness is transformative. Courts often consider five factors in determining transformativeness:
•  whether the depiction of a celebrity is a “raw material” used in a larger expressive work, or whether the depiction of the celebrity “is the very sum and substance of the work”;
•  whether the work in question is “primarily the defendant's own expression,” i.e., whether the primary motivation for a purchaser of the work is to buy the defendant's expressive content or a mere reproduction of the celebrity;
•  “whether the literal and imitative or the creative elements predominate in the work”;
•  whether “the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted”; and
•  whether “an artist's skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame.”
The majority of these cases have focused exclusively on the third factor, whether literal or creative elements predominate in the work. In Keller, this led to a ruling that the use had not been transformative because the game had depicted Keller as "what he was: the starting quarterback," and "where the public found [him] during his collegiate career: on the football field." In No Doubt, the focus on this factor led to a similar ruling of non-transformativeness because the game "does not transform the avatars into anything other than exact depictions of No Doubt's members doing exactly what they do as celebrities."
Noriega's Argument
Under this standard, Noriega does appear to have an argument. The character in "Call of Duty: Black Ops II" is not a parody of Noriega or a differently-named character based on Noriega, it is, explicitly, former Panamanian dictator Manuel Noriega. Like EA in the Keller case, Activision is using Noriega's likeness specifically, but Activision goes a step further than EA and refers to Noriega by name. And as Eugene Volokh notes, Noriega could argue that he is presented in a nontransformative "realistic context" in the game.
But unlike the Keller and No Doubt cases, Activision may be using Noriega's likeness transformatively by inserting it into a larger story. Keller involved the likeness of a college football player playing college football, and No Doubt was about the likeness of the band playing music. "Call of Duty" doesn't simulate the life or career of Manuel Noriega, but includes him as a character to advance the plot in a fictional narrative set in the future, possibly making the use of his likeness more creative than realistic.
The other four factors may point toward transformativeness as well; "Call of Duty" uses Noriega's likeness in a larger story, the story is Activision's own expression, and the marketability of "Call of Duty" probably doesn't depend on the use of Noriega's likeness.
Activision appears to have a strong argument, assuming it never releases something like "Noriega Simulator," in which the player controls the realistically-portrayed actions of Manuel Noriega during his reign in the 1980s.
Incidentally, I would absolutely play that game.

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