Noriega v Activision: can a dictactor control his online image?

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News has broken that Manuel Noriega, the former military dictator of Panama, is suing Activision on the claim that his name and likeness is used as a supporting character in the latest game in the multi-billion dollar Call of Duty game series, Call of DutyBlack Ops 2.

In a nutshell: the game is set in the 1980s and includes Noriega as a supporting character involved in murder, betrayal and intrigue (the normal day job for any dictator, then).  It’s clear that Activision have strived for a realistic depiction of Noriega (as they have done for other historical characters by the way including John F. Kennedy, Richard Nixon and even Fidel Casto), but General Noriega wasn’t happy with that and has sued Activision, claiming essentially that they should have asked his permission and have profited from using his image and name without permission.  In essence, I suspect he wants to be paid a large sum of money from Activision.

Legally, this matter is really about something called ‘publicity rights’: the legal principle in the United States that an individual can control how his or her name and image is used, including in the online world and that includes in video games.

The exact application of this legal principle is now fairly well known in books, films and other artistic mediums, but less well so in video games.  However, there has been a small wave of cases in the US recently testing exactly how publicity rights, as well as free speech rights, apply to video games.  Most recently, Lindsey Lohan has sued the makers of Grand Theft Auto V over her alleged appearance in that game (although her name is not used).  A large number of American college football and basketball athletes have sued Electronic Arts over their appearance in their sports games.  Other attempts have been made by musicians (including the rock band No Doubt) and other celebrities in the past.

Outside of the US, no countries have such strong publicity rights systems and so the legal position is unclear…but on the whole, these claimants would have still have legal claims they could run.  For example, in the UK a similar right seems to be evolving out of the privacy rights granted to celebrities following the paparazzi cases of the late 90s and early noughties.  Lady Gaga for example successfully took legal action against British games company Mind Candy over their use of a character called ‘Lady Googoo’ in their game Moshi Monsters.

As for General Noriega, we’ll have to see how this rather odd story develops.  On the one hand, based in the very little we know, he does in principle seem to have a legal claim of sorts against Activision, even though he is a foreign national (since on the whole the US recognises foreigners in publicity rights cases).  However, Activision will have opposing legal arguments, in particular a First Amendment free speech argument that they have the artistic freedom to include him in the game (although, following the recent EA and college athlete cases, that may not be a super strong legal argument).  Finally, while in theory legal dictators should have the same legal protection as pop stars, celebrities or anyone else, in practice I wonder whether a US judge would take very kindly to what could come across as an opportunistic attempt to obtain licence fees from Activision.  It’s early days yet though and we haven’t seen the court pleadings, so watch this space…

In the meantime, the moral of the story for the games industry and in the online world generally is: if you try to include a real person’s name or likeness in your product without their permission, you have to be prepared for the risk (however theoretical) of legal problems with that person in the future.

One Response to “Noriega v Activision: can a dictactor control his online image?”

  1. Gene

    Another factor to consider is the extent to which Noriega’s exclusive right of publicity may be affected due to his public figure status.

    Reply

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