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In the midst of a lawsuit against Activision Blizzard, Call of Duty: Black Ops II, Manuel Noriega has come forward to explain how it came to his attention that Call of Duty: Black Ops II was featuring his image.
“I first became aware that my image and likeness was being utilized in Call of Duty: Black Ops II when my grandchildren played the game and asked why, in the video game, their target was to capture my character,” says Noriega in a declaration submitted in Los Angeles Superior Court.
The former Panamanian dictator doesn’t detail the explanation that he gave to his grandkids, but does offer quite a signature:
The declaration was filed in conjunction with a response to Activision Blizzard’s special motion to strike the lawsuit. The game publisher has hired Rudy Giuliani, among other attorneys, to handle the case, and in September told the judge that Noriega’s “audacious” claims threatened to give historical and political figures veto rights over constitutionally protected works, including movies, TV shows, and books.
Although Activision says in its legal papers that the “Noriega character plays a minor role in Black Ops II,” Noriega’s attorney says that the mission featuring the former Panamanian dictator “is arguably a major if not the most key level of the game.”
To prove it, Noriega’s papers offers a recap of the interactive scenes that feature him. There are screenshots captioned “Noriega with a shotgun in hand,” “Noriega shooting a soldier with the machine gun,” “Noriega getting choked,” “Noriega getting punched,” and “Noriega in the ‘first-person shooter’s’ crosshairs,”
Besides the well-decorated brief, Noriega’s attorney uses case law — involving The Three Stooges, No Doubt and college athletes — to make the case that the video game represents a “literal, digital representation” of the plaintiff in flagrant disregard for his publicity rights.
The legal standard in these types of cases has typically been whether the celebrity likeness is used in a transformative way or whether the depiction of the celebrity is the very sum and substance of the work in question.
However, one thing that bears watching is how the standard might possibly shift soon.
Three years ago, a California judge rejected a lawsuit from an Iraqi war veteran who claimed to be the inspiration behind the Academy Award winning film, The Hurt Locker. The case was taken up to the 9th Circuit Court of Appeals and argued. Then, the panel of appellate judges decided to defer a ruling pending the U.S. Supreme Court’s decision to review or not a case against Electronic Arts brought by former athletes. Last week, the high court declined to hear this case and make its first examination of publicity rights since 1977.
As a result, the 9th Circuit is now due to weigh in on likeness claims. The judge in the Noriega case could issue a ruling before then, but if so, he’ll be shooting at a moving target.
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