This is a follow-up to my earlier post “Dictator Objects to Black Ops II.” A state court in California has ruled against former Panamanian dictator Manuel Noriega in his lawsuit against Activision Blizzard for appearing in Call of Duty: Black Ops II. If you recall, Noriega objected to appearing as a character in Black Ops II and sued to enforce his likeness rights. The court evidently objected to his objections and dismissed the case with prejudice.
The law in California on violations of a person’s right of publicity involves a “transformative use” test. Essentially, the court looks to see “whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.” If the use of the likeness is just one of many raw materials used to create a game, then the defendant is generally in the clear. However, if the game can basically be summarized as “Hey look! It’s Manuel Noriega! And we didn’t even pay him for this!” then there will be trouble.
In this case, the court noted Noriega’s notoriety as a military dictator and as an important figure in the drug and arms trades, stating that he was “perhaps one of the most notable historical figures of the 1980’s[sic].” The court also noted that Noriega gave no evidence of harm to his reputation. “Indeed, […] it is hard to imagine that any such evidence exists.” Noriega merely stated that he did not consent to his image and likeness appearing in Black Ops II.
With this in mind, the court then turned to the game itself. The judge pointed to several important facts, including: The game is a fictional game, but set in the context of the Cold War, and incorporates CIA operations. Noriega appears in only 2 of the 11 missions in the game, and “for only a matter of minutes.” He (that is, the in-game character of Noriega) speaks fewer than 30 lines in the entire game. He is one of over 45 characters in the game, some of whom are also real-life historical figures. Players never get the chance to play as Noriega, to “experience gameplay though his eyes.” Noriega did not appear in any advertisements for the game. Based on these and other considerations, the judge held that such a “complex and multi-faceted game is a product of [Activision’s] own expression,” with minimal use of Noriega’s image and likeness. Therefore, Black Ops II was transformative, and Activision is allowed to use Noriega as a character without his consent. However, the court did not indicate whether any of these were more important than any others. Neither did it mention whether the case would have gone the other way if any particular fact were not present.
Okay, fun story, but why is this important? After all, California law applies only in California, and not in some other state, or in another country (e.g. Panama), right? True, but probably all it takes is selling a single copy of a game in California to fall under California jurisdiction. This is even more important with digital downloads or other Internet platforms. With physical discs, a publisher at least has decent control over where copies of a game end up. No so much over the Internet, where it is much more likely that anyone in the world can potentially access your game. Additionally, California law is a focal point for right-of-publicity law in general. California law has lots of experience dealing with celebrities in Hollywood, and other jurisdictions look to California to help inform their own local laws in this area. Federal courts expressly looked to California law when deciding the recent NCAA Football games cases. (Although it is interesting to note that the court in the Noriega case more or less said that the federal courts got it wrong in the NCAA cases.)
So, be careful when using real people in your games, whether they are still living or even recently deceased (some states allow the right of publicity to endure for years, or even decades, after death). As I mentioned previously, even if the law is on your side, it won’t always stop you from getting sued. Especially by someone who needs to feel important.
As always, this is just legal information, not legal advice, and (unless you hired me recently) I am not your lawyer.
© 2014 Sam Castree, III