Manuel Noriega Loses Right of Publicity Suit Against Activision (Guest Blog Post)

By guest blogger Tyler Ochoa

What does former Panamanian dictator Manuel Noriega have in common with former NFL running back Jim Brown and a host of former college athletes?  All of them are suing videogame companies for using their likenesses in videogames without their permission; and all of them have had to battle arguments that the First Amendment prohibits a state from enjoining or awarding damages for such use.  While the college athletes have so far succeeded in fending off the First Amendment defense, a California trial court recently ruled against Noriega.

Noriega’s likeness is used in the videogame Call of Duty: Black Ops II, published by Activision.  One of the “missions” in the game is to capture or kill Noriega, who is depicted as a corrupt dictator who runs a drug smuggling operation and kills those who cross him without remorse (or, in the words of his complaint, “as a kidnapper, murderer, and enemy of the state”).  See screen shots here and here.  His acne-scarred face is much as we remember it from the early 1990s when, in real life, Noriega surrendered to U.S. authorities and was convicted of drug trafficking, racketeering, and money laundering in a U.S. federal court.  He served 15 years, then was extradited to France, where he was convicted of money laundering and served another 7 years.  He was then extradited back to Panama, where he is currently serving a 20-year sentence for murder and money laundering.

In July 2014, Noriega filed a lawsuit against Activision in California Superior Court, alleging violation of his statutory right of publicity (Cal. Civ. Code §3344) and common-law right of publicity, and a claim for unfair business practices (false endorsement) under Cal. Bus. & Prof. Code § 17200.  (Another claim, for unjust enrichment, was later conceded to be an alternative remedy rather than a separate cause of action.)  Activision responded with a special motion to strike under California’s “anti-SLAPP” statute (Cal Civ. Proc. Code § 425.16).

An Aside: Anti-SLAPP Procedure

The acronym “SLAPP” stands for “Strategic Lawsuit Against Public Participation.”  A classic “SLAPP” scenario looks like this:  an individual (such as a whistleblower or consumer activist) publicly accuses a large, powerful person or corporation with some kind of wrongdoing.  The large, powerful person or corporation responds by filing a lawsuit against the individual for defamation or disparagement (or anything else the lawyers can think of).  The purpose of this lawsuit is not to recover damages, or even vindicate legal rights.  Instead, the lawsuit is designed to make it so risky, burdensome, or expensive for the individual to defend that that individual (and others like him or her) will be deterred from making public statements about the powerful person or corporation.  In other words, the Lawsuit is part of the powerful corporation’s (or person’s) Strategy to chill the exercise of free speech by the individual, or to discourage their Public Participation in important policy debates.

Section 425.16(a) of the California Civil Procedure Code declares that “there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”  Accordingly, the statute establishes a special motion to strike such a lawsuit, which may be brought at the outset of the case.  Subsection (b) states:

A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

Discovery is stayed until the motion to strike is resolved; and if successful, the defendant may recover his or her attorneys’ fees incurred in bringing the motion.

Unfortunately, judicial precedent has watered down the “Anti-SLAPP” procedure, so that it often resembles little more than an early motion for summary judgment.  First, the court must determine whether the lawsuit arises out of protected activity, i.e., whether it arises out of an exercise of free speech or petition.  Second, the court must determine whether the plaintiff is likely to prevail.  Here, the court does not really weigh the evidence to determine whether the plaintiff has a “probability” of prevailing, as the statute contemplates. Instead, if the plaintiff has enough evidence to warrant a trial (“minimal merit”), the court will typically deny the motion.

The facts of the Noriega case do not fit the classic “SLAPP” pattern.  While Noriega once held great power, he is currently languishing in prison in Panama; and the defendant Activision is a relatively strong corporation itself, rather than a civic-minded individual who is trying to expose some wrongdoing.  It is unlikely that Noriega’s suit was a “strategic” lawsuit brought merely to “chill” Activision’s free speech.  But the SLAPP statute is phrased very broadly (likely to avoid running afoul of the First Amendment itself, by favoring some types of speech over others), and it is frequently been used by defendants to get an early ruling on a First Amendment defense.  While California’s anti-SLAPP statute does not apply to federal causes of action, it has been held to be “substantive” for purposes of the Erie doctrine, so it applies to state causes of action even when they are brought in federal court.  The anti-SLAPP procedure has been used by defendants in right of publicity cases before, most notably in the lawsuit brought by heiress Paris Hilton against Hallmark Cards for using her likeness on a greeting card.  Hallmark’s anti-SLAPP motion in that case was denied.

The Merits

The false endorsement claim in the Noriega case was a real stretch.  If Warner Brothers decided to make a movie about the period, no reasonable person would think that all of the people depicted had cooperated with or endorsed the film, and the same standard should be applied to a videogame.  Noriega’s one glimmer of hope was that some of the other historical figures, including former National Security Council staff member Oliver North, cooperated with Activision and provided their own voices.  If that fact was known to consumers, arguably a few of them might think that other historical figures (such as Noriega) had also cooperated with Activision and endorsed the game.  But it is highly unlikely that any politician would agree to be depicted as a murderous drug-smuggling dictator, no matter how close that depiction might be to the truth.  Noriega did not submit any evidence of consumer confusion, and the court easily dismissed the false endorsement claim.

Noriega’s right of publicity claim, on the other hand, was (sadly) not completely crazy under existing law.  Cal. Civ. Code §3344 prohibits anyone from using another person’s “name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods,” without that person’s permission.  A videogame certainly qualifies as a “product” or a “good,” and Activision did not attempt to disguise the fact that it was using Noriega’s name and likeness.  The statute has an exemption for “any news, public affairs, or sports broadcast or account, or any political campaign,” but that exemption does not apply.  Activision was not attempting to report any news or factual information about Noriega; instead, it was creating a fictional scenario based on his factual activities.  Accordingly, as is so often the case in right of publicity cases, the First Amendment is the only plausible defense that Activision could raise.

Courts in right of publicity cases have eschewed the formal “strict scrutiny” and “intermediate scrutiny” tests applied in other areas of First Amendment law.  Instead, two main approaches have emerged (out of a multitude of approaches that I have described previously).  One approach is the Rogers test, which asks whether the use has “artistic relevance” to the defendant’s work.  If so, the work is protected by the First Amendment, unless it expressly misleads the public about the source or sponsorship of the work, or unless it is an advertisement in disguise.  In Brown v. Electronic Arts, 724 F.3d 1235 (9th Cir. 2013), the Ninth Circuit used this approach for causes of action based on false endorsement under Section 43(a) of the Lanham Act.  The other approach is the Saderup test, which borrows the concept of “transformative” use from copyright fair use law.  It asks whether “artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain” (in which case the First Amendment does not outweigh the right of publicity), or whether the “work contains significant transformative elements,” in which case the First Amendment does outweigh the right of publicity.  “Another way of stating the inquiry is 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. . . . Furthermore, in determine whether a work is sufficiently transformative, courts may find useful a subsidiary inquiry . . .: does the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted . . . [or] from the creativity, skill, and reputation of the artist[?]”

The California Superior Court agreed with recent federal decisions that the Saderup “transformative” test was the appropriate test to apply, but it disagreed with the majority in those cases about how to apply it.  In two cases involving the use of college athletes’ likenesses in videogames, the majority in both Hart v. Electronic Arts, 717 F.3d 141 (3d Cir. 2013) and In re NCAA Name & Likeness Licensing Litigation (Keller v. Electronic Arts), 724 F.3d 1268 (9th Cir. 2013) held that what mattered was whether the likeness of the celebrity was transformative, not whether the work as a whole was transformative.  Since the two videogames depicted college athletes doing what they did in college (playing football), the majority in each case held that the use was not transformative (even though many other elements were added, and the users could play hypothetical games instead of real ones).  Similarly, in No Doubt v. Activision Publishing, Inc., 192 Cal. App. 4th 1018, 122 Cal. Rptr. 3d 397 (2011), band members were depicted playing rock songs (albeit songs of other bands, which went beyond the scope of the license), and the court held that the depiction was not transformative. 

If those cases had been followed in the Noriega case, Noriega likely would have defeated the anti-SLAPP motion.  The game depicts Noriega doing what he did in Panama in the 1980s and 1990s, as a corrupt general running an illegal drug cartel.  Instead, however, the California Superior Court looked at the entire work as a whole and determined that it was transformative.  It noted that Noriega was only one of 45 characters in the game, that he appears in only two of the 11 “missions” in the game, for only a few minutes and less than 30 lines, and that Noriega was not used in advertising or marketing the game.  The court dismissed Keller in a single footnote:

Plaintiff places great reliance on Keller v. Elec. Arts Inc., 724 F.3d 1268 (9th Cir. 2013). First, that case is not binding authority on this Court. Further, to the extent 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.

Analysis

It is difficult to reconcile Noriega with Keller and Hart.  In both cases, the plaintiffs were but one of many real-life people depicted in the videogames, which simulate hypothetical variations on real-life scenarios.  In both cases, the individual plaintiffs were not used to market the games, but the facts that the games were based on real-life people and scenarios were used to market the games.  Arguably, Noriega had a stronger case in one respect: you could play the NCAA Football videogames without ever encountering the Hart and Keller avatars, if you never chose to play their respective teams (Rutgers for Hart, Arizona State and Nebraska for Keller), but you can’t play Call of Duty: Black Ops II without completing the two missions in which Noriega appears.  Also, the Noriega court noted that players “can never assume the Noriega character’s identity, control its movements or experience gameplay through its eyes,” whereas one can control the movements of the Hart or Keller avatars.  If anything, however, that fact should make the NCAA game more transformative: a player can’t change how Noriega appears in Call of Duty, but a player can change Hart or Keller’s attributes and game play if he or she wishes.

Noriega was a public official, which arguably makes Call of Duty political speech, whereas Hart and Keller are merely sports celebrities who are (or were) public figures.  Political speech undoubtedly lies at the core of the First Amendment.  But Noriega isn’t running for public office, and currently he is not the subject of any political controversy in the U.S.  Moreover, the Supreme Court doesn’t distinguish between public officials and other public figures when applying the First Amendment to defamation, so why should we distinguish between them when applying the First Amendment to the right of publicity?  (Ironically, Activision was represented by former New York Mayor Rudolph Giuliani, who took a less charitable view of the First Amendment when New York Magazine ran ads on public transit saying “Possibly the only good thing in New York Rudy hasn’t taken credit for.”  When the MTA pulled the ads at Guiliani’s request, New York Magazine successfully sued to restore them. See New York Magazine v. Metropolitan Transportation Authority, 987 F. Supp. 254 (S.D.N.Y. 1997).)  The only other distinction is that we feel sympathetic toward college athletes, who drive the economic engine of college football without being paid; but we have little sympathy for a corrupt dictator like Noriega.  But a distinction based on sympathy would violate a core principle of the First Amendment, that government must remain viewpoint-neutral and cannot favor one viewpoint over another.

The Noriega court also ridiculed the allegation that the game harmed Noriega’s reputation.  Given the real-life crimes for which Noriega has been convicted, it is indeed “hard to imagine” that his reputation could possibly be harmed.  The right of publicity, however, is primarily about economic harm (or unjust enrichment), rather than reputational harm.  Arguably, if the opportunity to capture or kill Noriega in game play made the game more popular, then perhaps Noriega “deserved” to be paid for the use of his name and likeness in increasing the coffers of Activision.  In terms of the “incentive” rationale for intellectual property, however, the case is indefensible.  We certainly don’t want to give political leaders an “incentive” to commit notorious crimes in order to gain fame that can be exploited economically.

Noriega unquestionably reaches the right result as a matter of First Amendment law.  But just for that reason, it should cause us to re-examine the holdings in Hart and Keller.  We don’t yet know whether Noriega will appeal the decision to the California Court of Appeal or further; but even a final ruling in California would not be binding on the federal courts in future cases, because the First Amendment is a matter of federal law, not state law.  Keller and Hart have settled, so only in the unlikely event that the Noriega case reaches the U.S. Supreme Court will we get a definitive ruling on how the “transformative” use test should be applied to the depiction of real-life people in videogames.

Case citation: Noriega v. Activision, BC 551747 (Cal. Superior Ct. Oct. 27, 2014).