Transformative Use of Notorious Dictator’s Name and Likeness in Video Game is Protected Speech

A jailed Central American dictator's quest to hold a video game manufacturer liable for use of his likeness failed when Los Angeles Superior Court Judge William Fahey granted Activision Blizzard Inc.'s special motion to strike former Dictator Manuel Noriega's lawsuit arising from the use of his likeness in the video game "Call of Duty: Black Ops II." "Black Ops II" is a "first-person shooter" video game that is part of the "Call of Duty" franchise, a series of video games where the player assumes the role of different soldiers who have to carry out various missions in fictional warfare scenarios.

The court held that Activision's First Amendment right to free expression outweighed Noriega's right of publicity under the transformative use test. This decision adds to the ever-growing case law on the intersection between video games and the right of publicity by rejecting the Ninth Circuit Court of Appeal's narrow interpretation of the transformative use test adopted in Keller v. Electronic Arts, 724 F.3d 1268 (9th Cir. 2013).

Background

Noriega was a Panamanian military general and later the dictator of Panama from the early 1980s to 1989 – according to the court, "Noriega is a notorious public figure, perhaps one of the more notable historical figures of the 1980's." In January 1990, he was captured by the U.S. military and brought to the United States, where he was convicted on several counts, including narcotics trafficking and racketeering. He was later convicted in France and Panama as well. Noriega remains imprisoned in Panama to this day.

On July 15, 2014, almost two years after "Call of Duty: Black Ops II" was released, Noriega sued Activision for violation of his right of publicity under California Civil Code § 3344, unjust enrichment, and unfair business practices. In response, Activision filed a special motion to strike under the California anti-SLAPP statute.

Probability of Success on the Merits

During the hearing, Noriega's counsel conceded that Activision had satisfied the first prong of California's anti-SLAPP statute – that the suit arose from Activision's constitutionally protected activities. Consequently, the court focused on the second prong, whether Noriega showed a probability of success on the merits.

After reviewing cases applying the transformative use test, primarily No Doubt v. Activision, Inc., 192 Cal. App. 4th 1018 (2011), and based on largely undisputed facts, the court concluded that Activision's use of Noriega's likeness was transformative. A product containing a celebrity's likeness is so transformed when it has become primarily the defendant's own expression rather than the celebrity's likeness. The inquiry boils down to whether the literal and imitative or the creative elements predominate in the work.

The court explained that Noriega's character was created from publicly available images that were "part of the extensive 'raw materials' from which the game was synthesized" and his character was not the "very sum and substance" of the game. For instance, Noriega's character was one of over 45 characters, which included other historical figures. He appeared in only two of eleven missions for no more than a few minutes and his likeness was not used in any of the game's marketing or advertising. As a result, the court found that "Black Ops II" was a "complex and multi-faceted game" product of Activision's "own expression, with de minimis use of Noriega's likeness."

Moreover, although the court believed that economic considerations were not relevant because the video game was transformative, it nevertheless concluded that the marketability and economic value of the game came from Activision's creativity, skill, and reputation and not from Noriega. Therefore, Noriega's right of publicity claim could not survive Activision's First Amendment defense.

In a footnote, the court explained that despite Noriega's "great reliance" on Keller, Keller is not binding authority to a Los Angeles Superior Court and "to the extent that Keller suggests that the entirety of the disputed work should not be considered under the second prong of the anti-SLAPP analysis, such reasoning is in conflict with the controlling California authorities cited herein and relied upon by this court."

The court also dismissed Noriega's unfair business practices claim because it was based on the same facts as his right of publicity claim.