Activision is being sued by former Panama dictator Manuel Noriega for their depiction of him in Call of Duty: Black Ops 2. But does the lawsuit hold any water?
The now 80-year-old Noriega filed the lawsuit Tuesday in Los Angeles County Superior Court, claiming that Activision used his name and likeness with his permission. The lawsuit alleges that Call of Duty: Black Ops 2 portrays him as "a kidnapper, murderer and enemy of the state." The was done "to heighten realism in its game," which "translates directly into heightened sales."
I'm not sure if Noriega or his lawyers realize this, but Black Ops 2 didn't sell well because of how they portrayed him. It sold well because it's Call of Duty. And no one plays the campaign anyway. That said, Noriega is right — Activision did use his name, likeness, and history in the game. But is that enough for him to win a lawsuit against Activision?
My understanding of the law is that video games are protected when using an individual's image if the image is sufficiently transformative. In other words, if the video game uses that character in a way that is creative, original, and makes it their own, then they should be fine.
One example of this I found from a Pillsbury Law publication from March 2012. The case involved Activision as well; No Doubt v. Activision Inc., 192 Cal.App.4th 1018 (Cal. App. 2011) was a video game right of publicity case that had Activision using literal recreations of the members of the band No Doubt. In the publication, it states:
Ultimately, the band members felt that the video game feature which allowed the No Doubt characters to perform the songs by other artists exceeded the scope of the license and violated their right of publicity. On appeal the court concluded that there was a likelihood that the No Doubt band members would succeed in their right of publicity claims and rejected a defense based on First Amendment protection. This decision was founded on the basis that Activision's literal recreations of the individuals were not sufficiently transformative. The court felt that the depicted characters were nothing more than the band members engaging in the same activity they are best known for. Therefore, the court opined that the creative elements included in the video game did not tip the scale in Activision's favor and the No Doubt band members should have the right to control and exploit their images.
So did Activision use Manuel Noriega creatively enough to have him do more than he did in real life?
In Call of Duty: Black Ops 2, Activision has General Manuel Antonio Noriega Moreno aid the CIA in capturing main antagonist Raul Menendez. Noriega then betrays his own men, helping Menendez, who then nearly beats Noriega to death. Noriega goes by the call sign "False Prophet" in the game, as well. Again, the suit claims that Activision depicted him as "a kidnapper, murderer and enemy of the state," adding that Activision implied he was "the culprit of numerous fictional heinous crimes, creating the false impression that defendants are authorized to use plaintiff's image and likeness. This caused plaintiffs to receive profits they would not have otherwise received."
Well, let's take a look at how fictional Activsion got. In real life, Noriega served 15 years of a 30-year sentence in a U.S. federal prison because he was convicted of eight counts of drug trafficking, racketeering, and money laundering in 1992. Then after serving one year and two months of a seven-year sentence in France, again for money laundering, he was extradited to Panama to serve a 20-year sentence for murder. Murder. Murder is pretty heinous, is it not?
Just like in the game, Noriega was the military dictator of Panama from 1983 to 1989, at which time he was removed from power, captured and detained as a prisoner of war in the 1989 invasion of Panama by the United States. Just like most other dictators in the world, Noriega worked with the CIA from the late 1950s to the 1980s.
For those keeping track, that means Activision used his name, likeness, portrayed a relationship to the CIA, and showed him to be a murderer — all things that are true about him. However, the missions, dialogue and actions are all fictional, creating a unique version of Noriega that, while close to the real-life version, isn't the real life version.
This is kind of like the lawsuit with the 2000 movie, The Perfect Storm. Names of real people that died were used and portrayed in the film without consent from family in the movie that depicted the sinking of the Andrea Gale, a 72-foot commercial swordfishing boat, and the families felt that their deceased loved ones were portrayed in a false light. The suit was about whether a Florida law that prohibits the unauthorized publication of name or likeness for trade, commercial or advertising purposes applied to a movie. It did not. Writers, musicians and artists have the freedom to interpret historical events. Warner Bros. won on the basis that the movie was based on fictionalized accounts of what happened, making it protected by the First Amendment right to freedom of expression.
What does all this mean?
I write about games, not law. But from these other examples, Activision put enough fiction in their Black Ops 2 portrayal of Noriega that it would also be protected by the First Amendment. We'll see how the lawsuit plays out, but my guess is that Activision wins.