Call of Duty — to Protect the Right of Publicity?
By: Sharon Adams
Oct. 23, 2014
The recent case of Noriega v. Activision Blizzard presents the question: Does infamy give rise to the right of publicity?
Manuel Noriega, the former Panamanian dictator, filed suit against Activision Blizzard, Inc. in July of this year, claiming that Activision’s use of his image and likeness in the wildly popular video game Call of Duty: Black Ops II violates his rights of publicity under California Civil Code § 3344, and common law. In this video game, Noriega is depicted as a kidnapper, murderer and enemy of the state, according to Noriega’s complaint, and one objective of the game is to capture Noriega.
Former New York City Mayor Rudolf Giuliani is defending Activision, and argues that Noriega’s lawsuit is meritless. He recently appeared in Los Angeles superior court, seeking dismissal of Noriega’s case. He argued that Noriega, as a historical figure, has no right restrict the First Amendment rights of Activision. Well, that is the job of a defense attorney — to argue and cast doubt. But, does Civil Code § 3344 really say that?
Statutory Right of Publicity
Civil Code § 3344 prohibits the use of:
“another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling … without such person’s prior consent”.
There is no provision that prohibits historical or public figures from seeking damages under this section. Section 3344 does allow the use of images of public or historical figures in the news, sports broadcasts, and political campaigns. But, when such use is for the purpose of selling products, then Civil Code § 3344 can be used to prohibit use of a public figure’s image, as shown by some recent cases. In these cases, living public figures have received compensation for violations of their rights of publicity.
For example, recently, college athletes received a settlement of $40 million from Electronic Arts, which is part of Activision. The athletes made the same claims being asserted by Noriega — violation of their publicity rights under Civil Code § 3344, based on Activision’s use of the athletes’ images in video games such as NCAA® Football.
In another similar case, the rock band No Doubt featuring lead singer Gwen Stefani, settled its claims for violation of publicity rights against Activision. In this case, Activision had a license agreement with the band, granting Activision rights to use band member images. However, the complaint alleged that Activision used band member avatars in violation of the license terms. In addition, the band claimed violation of their statutory and common law rights of publication, and that Activision had engaged in unfair business practices in violation of Business & Professions Code § 17220 (these are the same claims being made by Noriega).
In the No Doubt case, the California appellate court held that the First Amendment did not protect Activision’s use of images of the band. The court recognized the tension between the First Amendment and the right of publicity, writing that: “the state’s interest in preventing the outright misappropriation of such intellectual property by others is not automatically trumped by the interest in free expression or dissemination of information.” The court appeared to base its decision in part on the fact that No Doubt band members are celebrities, noting that:
“often considerable money, time and energy are needed to develop one’s prominence in a particular field. Years of labor may be required before one’s skill, reputation, notoriety or virtues are sufficiently developed to permit an economic return.” (Emphasis added.)
In Noriega’s case, Giuliani also argued that Activision’s use of Noriega’s images is transformative, and therefore protected by the First Amendment. This exact issue was also addressed in the No Doubt case. There, the court acknowledged the creative elements of the game, including the fanciful venues. But, the court held that there was no transformation of the band avatars, finding that “the game does not permit players to alter the No Doubt avatars in any respect”. Because of this, the court rejected Activision’s “transformative use” defense, and found in favor of the band.
Gwen Stefani, in Band Hero
Noriega’s complaint alleges that he is “readily identifiable in the video game” and there is no way to alter the Noriega avatar. Thus, there may not be a “transformative use” defense in this case, as well. However, this is a question for the court to decide.
It is clear that when public figures that have spent years cultivating their public image are protected by the statutory and common law rights of publicity. It remains to be seen whether Noriega’s “notoriety” entitles him to the same rights as celebrities or college athletes.