Activision v Noriega analysed: don’t make way for the bad guy

Back in July 2014 I wrote a post about whether a dictator (Manuel Noriega of Panama) could control his online image in a video game (the hit game Call of Duty: Black Ops 2)?  We now have an answer: nope.  In a short judgment which is interesting for all kinds of reasons, a Californian court has come down resoundingly on Activision’s side and dismissed Mr Noriega’s claims.  Read on more…

What’s all this, then?

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 sued Activision, claiming essentially that they should have asked his permission and have profited from using his image and name without permission.  

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.  It’s coming to the fore a lot more in a series of cases (more on that in my original post).

Why did Noriega sue Activision?

We now know from the judgement that actually Noriega only found out about all this from his grandkids!  The judgement said “he was not aware, until advised by his grandchildren, that his image and likeness were being used without his consent“.  So we can draw a fair inference from this that Mr Noriega is not himself a gamer, then.

More seriously, why did he sue Activision?  Most likely for money, but possibly also out of a genuine sense that Activision should have asked his permission first.  After all, in his line of thinking, he should still be afforded the same legal rights as everyone else – whether he’s a criminal dictator or no.  More on that difficult topic a bit later…

Why did Activision win?

Mr Noriega claimed that Activision had “engaged in the blatant misuse, unlawful exploitation and misappropriation of [his] image and likeness for economic gains“.  This involved claims under Californian publicity rights law, as well as for unjust enrichment and and unfair business practices.  In response, Activision brought a successful motion to dismiss the claim, through a combination of procedural tactics and substantive arguments.

Essentially, the Californian court held that Activision’s constitutional free expression rights must trump Mr Noriega’s publicity rights for several reasons.  First, the Call of Duty game in which he appeared constituted ‘transformative use’ of his likeness.  Second, Mr Noriega’s reputation had not been harmed, given his notorious past.  Third, his inclusion in the game was incidental in the context of the whole game (which included 45 other characters, some of them historical).  Fourth, the player can never play as Mr Noriega himself.  Fifth, Activision did not use Mr Noriega’s character in any marketing of the game.

In making this decision, the court often referred to and distinguished the earlier case of No Doubt vs Activision Publishing Inc (192 Cal App 4th, 2011) which discussed many similar issues in relation to a claim by the music band No Doubt that Activision had breached their publicity rights in relation to its video game Band Hero.  Longtime readers will know I’ve written about this No Doubt case before.

So, Activision should buy Gwen Stefani a big beer.

In passing, I was mildly amused to see that Activision was able so soundly to beat Mr Noriega by relying on legal principles stemming from its own defeat at the hands of Gwen Stefani and No Doubt.  It’s a small world…

No-one likes Manuel Noriega (least of all the learned judges of the State of California).

I was a bit surprised to see that nearly a page or so of the 6 page judgement was about all the bad things that Noriega had done, including how “in 1987, pro-Noriega mobs attacked the US Embassy” the consequences which led up to Panama declaring war against the US in 1989 and leading to “Operation Just Cause” – the US invasion of Panama in 1989.  Indisputably this is all relevant legal detail, which I imagine Activision supplied to the judge in its court documents.  It’s just a bit weird that the judge almost seemed to have cut and pasted it into the judgment, without passing almost any commentary at all about WHY.  To my mind, it’s almost like the judge felt he should make some comment about Noriega being a bad person and an enemy of the US…but I struggle to see how that is relevant to the legal principles at hand.

The answer to my mind is that, as a matter of public policy, neither Activision nor apparently the judge wanted to see US law being used to help out Manuel Noriega in his claim. His background as a mass murderer, criminal and dictator MUST have a bearing on his attempt to claim financial damages and more from Activision.  That’s a complicated legal point and I can see both sides of the argument…but the judge didn’t go through a public policy argument.  He just implied that Noriega is a BAD GUY and moved on to dismiss his claim without explaining why that was relevant.  Understandable, but troubling.

Black Ops 2 cost over $100 million  and employed over 250 people.

I don’t know if that’s widely known in the industry, but that’s what the judge said Activision told him.  Thought you might like to know.

What does this case mean more generally for rights of publicity claims?

There is a well known tension in US law between publicity rights and freedom of expression.  The tension arises from the need for a balancing act in this area between the rights of the individual and of wider society, which is complicated by varying case law and the fact that publicity rights are a state matter whereas freedom of expression is a constitutional matter.  There is considerable publicity rights case law in the US, but there has been little case law on the subject specifically regarding video games until recently.  From that case law we have so far, the courts seem still to be attempting a balancing act of these two competing factors, the results of which vary depending on the case.  In the No Doubt case for example, ultimately the music artists prevailed against Activision, whereas here Mr Noriega lost his claim against Activision.  There have been other publicity rights cases regarding interactive entertainment, including a series of actions by college athletes and other sports figures against games publishers.

What’s the next case going to be?

The lawyers for Lindsay Lohan will be looking at this case very closely.  In case you missed it, she is suing Take Two on a claim that it breached her publicity rights by including a character allegedly based on her in Grand Theft Auto V.  Clearly that case has a number of legal similarities to the No Doubt and Noriega cases so we’ll have to see what the court makes of that.

Instinctively, I’m not sure if the Noriega case will have a huge amount of significance, since it explicitly applies the No Doubt case rather than founds new legal principles.  Besides which, the fact that Noriega was a BAD GUY is a distinguishing factor.  Another distinguishing factor, which may operate in Lohan’s favour, is that the character she complains of WAS used in the marketing of the game.  Of course, Take Two’s argument will be that yes that character is in the marketing BUT IT’S NOT LOHAN.  We’ll have to wait and see.

What should a games studio do if it wants to use a living or historical person in its game?

Take advice from legal counsel regarding the legal position both in its home jurisdiction, potentially as well as the jurisdiction of the individual/brand/asset concerned.  The usual and safest route is to negotiate a licence.  If however that is not practicable or financially viable, then the games studio should take advice regarding its potential exposure if it proceeds without a licence.  As the Noriega case demonstrates, it is important that this advice takes into account the increasing specific legal developments in the interactive entertainment industry.  So there.


(PS: if you’re confused about the title of this post, watch this).