Judge Dismisses Former Panamanian Dictator's Suit Against Activision

Judge Dismisses Former Panamanian Dictator's Suit Against Activision

black ops ii noriega

A judge ruled Activision's use of Manuel Noriega's likeness in Call of Duty: Black Ops 2 was based on publicly available materials and is a right to free expression.

A California judge has dismissed the lawsuit of former Panamanian dictator Manuel Noriega against Activision over his appearance in Call of Duty: Black Ops 2. Judge William H. Fahey of the Los Angeles Superior Court concluded Activision's right to free expression outweighed Noriega's right of publicity.

Representing Activision, Rudy Giuliani, attorney and former New York City mayor, thanked the court for protecting free speech. "This was an absurd lawsuit from the very beginning and we're gratified that in the end, a notorious criminal didn't win," he said. "This is not just a win for the makers of Call of Duty, but is a victory for works of art across the entertainment and publishing industries throughout the world."

Noriega filed the lawsuit in July, claiming Activision had caused damage through its portrayal of Noriega and had used his likeness to increase sales.

Fahey concluded evidence shows Noriega is a "notorious public figure," and his appearance is minimal in the game. Noriega appears in two missions for a "matter of minutes." Activision also never used Noriega's likeness in marketing.

The ruling states, "The complex and multi-faceted game is a product of [Activision's] own expression, with de minimis use of Noriega's likeness. Because the videogame is transformative, economic considerations are not relevant. Regardless, the Court concludes that 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."

Activision filed a dismissal of the lawsuit last month.

Noriega will not be allowed to re-file his complaint, as Fahey dismissed it with prejudice.

Source: Activision

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This ruling seems contradictory to the judgement against EA for using the likenesses of college athletes. Maybe EA didn't use "publicly available materials"?

Still, I suppose this will get Lohan's suit against Rockstar thrown out.

I can imagine how the arguments went down:

Activision Lawyer: "As you can see, your honor, the game draws upon widely known and accepted public knowledge that Mr. Noriega was indeed a brutal dictator and someone who couldn't be trusted."
Noriega Lawyer: "Your honor, I object!"
Judge: "On what grounds?"
Noriega Lawyer: "Because it's detrimental to my case!"

MinionJoe:
This ruling seems contradictory to the judgement against EA for using the likenesses of college athletes. Maybe EA didn't use "publicly available materials"?

Still, I suppose this will get Lohan's suit against Rockstar thrown out.

Because EA used their likenesses to promote and sell the game without compensating them, the judge states Activision didn't do with that Manuel Noriega, if he had been the centerpiece of the game and advertised as such and used as a marketing hook ie was the main antagonist then he'd probably have won.

To me the difference between EA's use of college football players' likeness and Activision's use of Noriega's likeness is the difference between exploitation and fair use; Noriega is an important historical figure, so the use of his likeness shouldn't be restricted by his still being alive (No I don't know where to draw the line between "historical figure-ness" and mere celebrity status, but I know it definitely shouldn't be drawn anywhere near this case).

The football players, on the other hand, have no real impact on wordily events simply by playing college football pretty good and it is therefore unreasonable to argue that there is some kind of historic, journalistic or artistic imperative that their likeness should be public domain. Also they're teenagers and young adults who are getting screwed by billionaires. Also it's EA.

When it's statistically proven you were a ruthless dictator and a piece of art depicts you as a ruthless dictator it's probably not a good idea to sue for any other reason than libel.

If Activision really wanted to put the boot in they could donate some of the proceeds from this game to humanitarian efforts in Panama. "Did more good for Panama than Manuel Noriega." not the best standard of measurement to go by but would be both cheeky AND appreciated.

At this rate it won't be long before we can't use the likeness of dead celebrities without getting sued. The idea that anyone can own a look or personality is just ridiculous.

Sure, if it appears that the person was involved then it's just false advertising, it'd like putting a picture of George Clooney on the DVD cover of a film he's not in. But if it's clear they're not involved (e.g. no-one actually thought that Ellen Page was in The Last of Us) then they shouldn't be able to sue because the character was inspired by them, or a parody. That'd be like a film director getting sued for borrowing elements of another's style.

Everything we make is derived from what came previously, but companies are just scrambling to protect what they've deluded themselves to think is part of their "brand".

Is Noriega living here or something? If so they really shouldn't have let him.

I just couldn't help thinking 'And then another pile of amateur, transformative parodies were swallowed by baseless claims on behalf of corporate media interests, while the corporation whose right to publish their transformative work was just protected rakes in its winnings.' x.x

I know it's more complex than that, and Activision probably paid a fair bit more fighting the claim, and it's probably better than if the result had been otherwise, but.. still.

Secondhand Revenant:
Is Noriega living here or something? If so they really shouldn't have let him.

He is living in a Panamanian prison, has been since 2011. (That said the prison did USED to belong to the USA.)

But did anyone else find it weird to read that Rudolph Giuliani is now Activision's attorney? I mean really? He goes from being the mayor of NYC to handling personal deformation cases for a corporation that makes video games? I just don't get it.

MorganL4:

Secondhand Revenant:
Is Noriega living here or something? If so they really shouldn't have let him.

He is living in a Panamanian prison, has been since 2011. (That said the prison did USED to belong to the USA.)

But did anyone else find it weird to read that Rudolph Giuliani is now Activision's attorney? I mean really? He goes from being the mayor of NYC to handling personal deformation cases for a corporation that makes video games? I just don't get it.

He's a lawyer first, so like a mercenary he really doesn't have a sphere he adheres to. He can be a politician, or a cooperate lawyer, and seamlessly transfer between the two.

So that means that I can make a porn game with JLaw being raped and as long as I don't put here image on the front cover or mention here in marketing its fine!?
Or maybe I could make a football game with the likenesses or all the premiership players in it and just not use their official team shirts and slightly different club logos and that would be fine too?
Really stupid judgement that really opens the floodgates to clones and objectionable material.

Orcboyphil:
So that means that I can make a porn game with JLaw being raped and as long as I don't put here image on the front cover or mention here in marketing its fine!?
Or maybe I could make a football game with the likenesses or all the premiership players in it and just not use their official team shirts and slightly different club logos and that would be fine too?
Really stupid judgement that really opens the floodgates to clones and objectionable material.

Well obviously not because none of those cases fit within 'public domain', 'historic figure', 'artistic integrity' or literally any of the justifications mentioned in the case. What, did you read the headline and act out with action figures how you thought the law worked?

 

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