1:54pm PT by Eriq Gardner
'Call of Duty': Can Rudy Giuliani Beat Manuel Noriega, the Three Stooges and Gwen Stefani?
There might come a time when Hollywood actors rally behind former Panama dictator Manuel Noriega in his lawsuit alleging that the blockbuster video game, Call of Duty: Black Ops II, violates his publicity rights. Until then, under the category of "strange bedfellows," comes former New York City mayor Rudy Giuliani, who has snuggled up to Activision Blizzard in its campaign to protect its violent game.
Giuliani, now a named partner at Bracewell & Giuliani, is serving as co-counsel for Activision. He's the big name here, though Kelly Klaus at Munger, Tolles & Olson is no slouch, currently engaged in helping Warner/Chappell Music keep the "Happy Birthday" song from the public domain. Klaus is also co-counsel to Activision in the Noriega lawsuit.
On Monday, Activision's lawyers submitted a motion to strike Noriega's claim that Call of Duty violates his name and likeness arising from the game’s depiction of Panama during the late 1980s. Noriega's lawsuit complains he's been “portrayed as the culprit of numerous fictional heinous crimes.”
"Noriega’s claims are audacious," states the defendant's motion. "If credited, they would give numerous historical and political figures—as well as their heirs—a veto right over their appearance in imaginative works of art set in historical contexts. That veto right would cover not only videogames, but other constitutionally protected works, including movies, TV shows, and books (such as Forrest Gump, Saturday Night Live and Ragtime, to name just a few)."
Activision is looking to use California's anti-SLAPP statute to kill Noriega's complaint. This law is meant to stop frivolous litigation impinging First Amendment rights at the early stage. In order to succeed, Activision has to first show that its activity is in furtherance of protected rights like free speech. Given the outcome of the 2011 Supreme Court ruling, Brown v. Entertainment Merchants Association, Activision should be able to clear this hurdle easily.
The second prong of California's anti-SLAPP statute necessitates that Activision demonstrate a likelihood of ultimately prevailing in the lawsuit. If Activision is able to show this, the lawsuit goes no further. However, this is a much tougher hurdle for the game publisher.
That's because in 2001, the California Supreme Court looked at a dispute involving an artist who sold lithographs and T-shirts bearing the faces of the Three Stooges. The judges put forward the test of "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.”
Years later, Gwen Stefani used that ruling to overcome Activision's anti-SLAPP attempt to defeat her lawsuit that Band Hero infringed her publicity rights. Before the lawsuit was settled, a California appeals court rejected Activision's arguments that its use of a Stefani avatar amounted to a "transformative use" of her image.
In documents filed today, Activision aims to limit the fallout from that one. The game company argues that the judge in the Noriega case shouldn't even reach the transformative use test. To allow a historic figure to veto art would "chill these and countless other works—from Bill and Ted’s Excellent Adventure to Girl With a Pearl Earring," argues the game company.
Activision adds that the transformative use test derives from a state law interest in "protecting the fruits of artistic labor," and says Noriega is hardly the type of guy who is engaged in artistic labor. "His notoriety stems entirely from his role in widely known historical events as a dictator and convicted criminal," says the motion. "Noriega does not own this history any more than the first President Bush owns portrayals of him or his decision to order Operation Just Cause."
If the judge decides to examine whether Call of Duty's depiction of Noriega amounts to the very sum and substance of the work, Activision still believes the lawsuit should fail. The "Noriega character plays a minor role in Black Ops II," says the game and his "appearance is a small part of a 'larger story.'”
Time will tell if the argument is enough. One more example where a videogame maker failed in arguing the transformative test was Electronic Arts' inability to defeat claims made by college athletes over NCAA Football. Former Rutgers QB Ryan Hart might have had a pretty small role in one version of the game, but he was still able to attain a pretty large victory at the 3rd Circuit Court of Appeals last year.
If the Noriega case does eventually land at an appeals court, don't be surprised to see Hollywood weighing in. Publicity rights disputes tend to gather some strong amicus briefs — with actors' unions typically in favor of plaintiffs' rights and studios in favor of defendants' rights. Although it might seem odd (or maybe not) that actors will stick up in support of a notorious former dictator, the protection of a famous person's authority on their likeness is a legal topic that's of consequence beyond this single dispute.
Plus, it's certainly no more odd than the sight of Giuliani embracing Activision's attempt to protect a violent videogame as a product of the First Amendment.
Remember, this is the same politician who in 1999 attacked the Brooklyn Museum of Art over its "Sensation" exhibit, which featured a painting of the Virgin Mary on a canvas adorned with elephant dung. Giuliani attempted to cut off the museum's city funding over what he saw to be a sacrilegious exhibit. A judge slammed him, writing, "There is no federal constitutional issue more grave than the effort by government officials to censor works of expression and to threaten the vitality of a major cultural institution as punishment for failing to abide by governmental demands for orthodoxy.''
Giuliani responded to the ruling by saying, "The judge is trying to gloss over and not deal with the fact that the purveyors of this trash are making millions and millions of dollars."