Victory for Blizzard/Activision in “Call of Duty” Right-of-Publicity Battle with Manuel Noriega

This Blog is an Update to a Previous Post. To read the original post, please click here.

On August 1, 2014, we reported that former Panamanian dictator Manuel Noriega had filed a lawsuit in California Superior Court against Blizzard/Activision over Activision’s portrayal of the despot in its highly successful game “Call of Duty: Black Ops II” (“Call of Duty”). On October 27, 2014, the California Superior Court dismissed Noriega’s complaint in its entirety, with prejudice, granting Activision’s special motion to strike pursuant to California Code of Civil Procedure section 425.16, California’s “anti-slapp” statute, which is aimed at curtailing lawsuits brought for the purpose of chilling free speech. Under the statute, when a defendant can show that its work constitutes protected speech, the burden shifts to the plaintiff to demonstrate a probability of prevailing on his claim. The court held that Noriega had not satisfied his burden, and that his “right of publicity is outweighed by defendants’ First Amendment right to free expression.”

The court noted that Call of Duty was undisputedly protected by the First Amendment, and in explaining why Noriega was unlikely to succeed on his right of publicity claims (or his other claims, for that matter), summarized “defendants’ uncontroverted evidence” that “Noriega is a notorious public figure” by meticulously recounting Noriega’s historical exploits in Central America in the 1980s and 1990s. The court observed that Noriega “fails to provide any evidence of harm to his reputation” and “given the world-wide reporting of his actions in the 1980’s and early 1990’s, it is hard to imagine that any such evidence exists.”

In analyzing the “transformative use” test we discussed in our prior post, the court contrasted Noriega’s case with the No Doubt case. The court explained that in No Doubt, the defendant’s use of the band members’ likenesses was not transformative because the “graphics and other background content of the game are secondary, and the expressive elements of the game remain ‘manifestly subordinate to the overall goal of creating a conventional portrait of [No Doubt] so as to commercially exploit [the band’s] fame.” Noriega’s case presented the opposite scenario: Activision’s use of Noriega’s likeness in Call of Duty was transformative because it “was not the ‘very sum and substance’ of the work.” Rather, it represented a de minimis portion of the game as a whole, which was complex and highly creative. Also, Noriega’s likeness was not used in the marketing or advertising of the game and “the marketability and economic value of the challenged work in this case comes not from Noriega, but from the creativity, skill, and reputation of defendants.”

The Noriega case ultimately fell much closer to the Kirby end of the “transformative use” spectrum described in our prior post than to the No Doubt end of the spectrum. Still, the analysis in Kirby was distinguishable because the character in the game was, itself, different enough from the plaintiff, whereas in Noriega’s case, the character in the game is clearly Manuel Noriega; but there were more than enough other creative aspects to the game such that the depiction of Noriega, as just one facet, was transformative. This case further illustrates how fact-intensive right-of-publicity inquiries can be; just like no two famous (or infamous) figures are identical, no two cases involving their publicity rights are exactly alike. Although the Noriega decision falls squarely in the content creators’ corner, we still advise video game makers to consider all of their options, including clearances and licenses, making their use “transformative,” and consulting with counsel to minimize liability risks.