California Superior Court Finds Use Of Likeness Of Former Panamanian Dictator Manuel Noriega In Video Game Transformative

Manuel Noriega v. Activision Blizzard, Inc., No. BC 551747 (Cal Super. Ct. filed October 27, 2014)

In recent years, federal and state courts have wrestled with how to assess right of publicity claims in the video game context— when a real person's likeness is used in a game without their consent, to what extent is the use creative expression that is protected by the First Amendment? Is the overall context and nature of the game of any relevance to the analysis? The Ninth Circuit opinion in In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268 (9th Cir. 2013), seemed to suggest that courts should focus only on the degree to which the likeness itself had been "transformed," and ignore the game as a whole; however, a recent California Superior Court decision has dispelled the certainty of that assessment. Dismissing with prejudice a complaint filed by former Panamanian military dictator Manuel Noriega concerning use of his likeness in the popular video game "Call of Duty: Black Ops II," that court found the use transformative and protected under the First Amendment. In reaching this decision, the Noriega Court expressly rejected the Ninth Circuit's reasoning, finding it in conflict with controlling California authority, and making clear that the overall context can be key.

The Noriega Case Background

Noriega sued game publisher Activision, asserting that it had violated his right of publicity under California law by making him a character in "Call of Duty: Black Ops II," without his consent. California's statutory right of publicity, Cal. Civ. Code § 3344, provides a cause of action for knowing use of a person's image or likeness on or in, or in connection with advertising or selling of, products, without that person's consent. In the game, "players assume the role of a foot soldier placed in simulated infantry and warfare scenarios," set both during the Cold War and in a fictional future. Manuel Noriega v. Activision Blizzard, Inc., No. BC 551747, slip op. at 5 (Cal Super. Ct. filed October 27, 2014) ("Noriega Order"). The Noriega character appears in two of eleven game "'missions" and is one of dozens of other characters, including other historical figures, featured in the game. Noriega claimed that Activision's portrayal of him as an antagonist and criminal harmed his reputation.

Activision filed a special motion to strike under California's anti-SLAPP statute, Cal. Civ. Code § 425.16, asserting that the video game concerned matters of public interest and was thus protected speech. The Noriega Court focused on the second prong of the anti-SLAPP analysis whether Noriega met his burden of establishing a probability of success of prevailing on his claims, particularly his right of publicity cause of action and considered whether Activision's use of Noriega's likeness was sufficiently "transformative" to defeat his right of...