Manuel Noriega Played by Video Game

Former Panamanian dictator Manuel Noriega sued the makers of Call of Duty: Black Ops II (Activision Blizzard) for portraying him in their game “as a kidnapper, murderer, and enemy of the state.”

Call of Duty: Black Ops II is a first person shooter game, which includes historical footage and figures from the Cold War era. In the game, Noriega helps the CIA, but eventually becomes a game mission objective in “Operation Just Cause.” He later is used in a “prisoner” exchange, and throughout the game is shown betraying his own men and others, and generally depicted as a villain.

In real life, Noriega worked with the CIA from the 1950s through the 1980s while rising in command as a Panamanian leader. However, he was eventually ousted in an American lead coup, “Operation Just Cause” in 1989, and convicted of racketeering, laundering drug money, drug smuggling, and several murders in various countries, including the United States, France, and of course, Panama. He has been serving prison time since the early 1990s. In his complaint, Noriega claims that Blizzard is using his persona and likeness for commercial gain without his permission.

The right of publicity is an individual’s right to control the commercial use of their identity. For a successful claim, Noriega must show that:

  1. Activision used his identity, persona, or likeness
  2. Activision appropriated his identity to their advantage, commercial or otherwise
  3. Lack of consent
  4. Resulting injury

Noriega must also be able to overcome any affirmative defense raised by Activision.

While it is evident that Noriega has a viable right of publicity claim, the more interesting question lies with Activision’s likely affirmative defense, First Amendment freedom of expression. Courts have often found it difficult to strike a balance between the competing interests between a person’s right of publicity and the importance of protecting the freedom of expression in a democratic society. Manuel Noriega is unquestionably a public figure who committed various war crimes. At what point does his persona pass into the public domain, considering the infamy of his historical actions?

There are several balancing tests that courts use to resolve conflicts between the right of publicity and the First Amendment, but three tests dominate:

  1. The Predominant Use Test (examining commercial interests)
  2. The Rogers Test (modeled after trademark law)
  3. The Transformative Use Test (modeled after copyright law)

The Predominant Use Test examines the main use of the allegedly infringing product. Pursuant to this test, if the product sold predominantly exploits the commercial value of an individual’s identity, then that product should be held to violate a person’s right of publicity and not be protected by the First Amendment, regardless of if there is some expressive content that may qualify as speech in other circumstances. However, if the predominant purpose is to make an expressive comment about the individual in question, then the expressive components should be given greater weight, and the speech should be protected.

Courts that have adopted this test reason that the Rogers Test and Transformative Use Test give too little weight to the fact that many uses of the right of publicity have both expressive and commercial components. Since, arguably, the predominant purpose of most products is to encourage sales, this is a plaintiff friendly test. Critics of this method suggest that the test is “subjective at best, arbitrary at worst,” and requires judges to act as both impartial jurists and art critics. Hart v. Electronic Arts, Inc., 717 F.3d 141, 154 (3d Cir. 2013).

The Rogers Test examines the relationship between the persona being used and the work as a whole. Famously created in the Rogers v. Grimaldi case, the Second Circuit held that the right of publicity would not bar the use of an individual’s name unless the use was wholly unrelated to the product, or simply a disguised commercial advertisement for the sale of goods or services. 875 F.2d 994 (2d Cir. 1989) (finding that Ginger Rogers did not have a viable claim against the makers of the movie Ginger and Fred).

The “wholly unrelated” language makes this a defendant friendly test, as it potentially covers a large range of activity.

In practice, this test is mainly applied to the use of an individual’s identity in a work’s title; otherwise, it could potentially immunize an enormous amount of tortious activity. Critics of this test point out that its analysis is too close to that of trademark law, subjecting it to an improper analytical approach.

The majority trend is to apply the Transformative Use Test. This test borrows its analysis from copyright law, specifically, the first factor of the fair use analysis. The Transformative Use Test asks whether the work added significant elements such that it transformed the work into more than a celebrity likeness. Courts will examine whether the celebrity likeness is one of the raw materials from which an original work is synthesized, or whether the likeness used is the sum and substance of the work in question. Essentially, the question is whether the work is so transformed that it is the defendant’s own expression rather than the individual’s likeness. Transformative elements can take the form of parody, factual reporting, fictionalized portrayal, “lampooning,” or even social criticism.

It is unquestionable that video games are a form of protected First Amendment expression, but will a court find transformative elements to Noriega’s role when it so closely tracks history? It will be interesting to see how this plays out in any litigation. Activision Blizzard may have landed itself in a veritable firestorm.


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