Right of Publicity

Manuel Noriega's Crazy Lawsuit Over Call of Duty Isn't So Crazy


Manuel Noriega's mug shot

Photograph by Mark Peterson/Redux

Manuel Noriega's mug shot

Manuel Noriega joined Lindsay Lohan this week on the roster of mockable public figures filing lawsuits over unauthorized video game cameos. In a complaint filed in a California court, Noriega complains that he’s “portrayed as the culprit of numerous fictional heinous crimes” in Call of Duty: Black Ops 2, a game made by Activision Blizzard (ATVI).

The former Panamanian dictator, of course, is the culprit of numerous heinous crimes in real life. So, yes, his protests seem a bit ridiculous at first glance. But this isn’t a libel case. Noriega isn’t suing Activision for unfairly portraying him as a criminal; he’s suing it for not cutting him in on the money it made doing so.

This so-called “right of publicity” is at the heart of both Lohan’s and Noriega’s lawsuits, and a lawsuit between athletes and the NCAA, albeit in a less direct way. Tattoo artists have also sued video game makers that have featured their work, but that’s a whole different matter.

Some states have laws that prohibit people from using someone else’s likeness in commercial goods without his or her consent. California, where Noriega filed his suit, is one of those places. Such laws have the potential to penalize a very wide swath of creativity; should the Dutch musician Legowelt be worried about his weird electronic album The Rise and Fall of Manuel Noriega?

Legowelt is probably safe. Courts have protected works where a celebrity’s identity is used as the basis for the work and then transformed into something that clearly isn’t a straightforward depiction. But the Manuel Noriega who shows up in Black Ops 2 sounds a lot like the real-life version. This doesn’t mean Noriega will win, but it does mean this case isn’t complete malarkey.

Activision could potentially be in trouble, according to Eugene Volokh, a law professor who writes the Volokh Conspiracy blog for the Washington Post. “At the very least it sounds like Noriega has a credible claim,” he wrote on Thursday. This is evidence that there is something seriously wrong with the law, argues Volokh, who describes the law dealing with these claims as “broken and unpredictable.”

This isn’t the first time that Activision has had to answer for celebrity sightings in Black Ops 2. General David Petraeus also makes an appearance, which caused a small stir in 2012, leading the company to issue a statement saying he was not paid or involved in the creation of the game. “It is clear to game players that his character and others that are based on real-life figures are fantasy,” the company said at the time. It didn’t respond to a request to comment on the Noriega case.

While the video game industry has been the center of attention for this issue recently, there’s nothing inherent in gaming that makes its work a good target. If Noriega does well in court, there’s nothing keeping other deposed dictators from pursuing similar suits.

Brustein is a writer for Businessweek.com in New York.

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