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It’s former New York mayor Rudy Giuliani versus former Panama dictator Manuel Noriega in the latter’s lawsuit alleging that video game developer Activision Blizzard violates his name and likeness in its best-selling game Call of Duty: Black Ops II. Giuliani, now a named partner at Bracewell & Giuliani, is defending the game publisher, and to hear him tell it, the former dictator’s claims are an “outrageous offense to the First Amendment.”
In a press conference Thursday following a Los Angeles Superior Court hearing on the case, Giuliani went after Noriega personally for suing over his likeness in the game. “I am morally outraged that a man like Noriega is seeking to inhibit our creative rights in the United States. If creative rights have to be sacrificed, they shouldn’t be sacrificed for someone like Noriega, nor should anyone have to send millions of dollars down to a Panamanian jail because this madman is making absurd claims,” he told reporters.
“I think a man that engaged in selling $200 million of cocaine in the United States, who knows how many children he killed, a man who was a dictator of his country in which he tortured people for nine years, a man who laundered money in France, a man who chopped the head off of one of his allies and then was convicted in three countries, who is sitting in jail in Panama, trying to recover because he is a minor, minor figure in a very excellent game, Call of Duty by Activision, is an outrage,” Giuliani continued.
Noriega was convicted in the United States for money laundering and drug trafficking in 1992. Then extraditions led to prison sentences in Paris and Panama, where he has been since 2011. In July, he filed suit against Activision Blizzard, claiming that he is given a defamatory depiction in two Black Ops II levels set in 1980s Panama. His character is the villain, and he’s “portrayed as the victim of numerous fictional heinous crimes,” his complaint alleges.
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The lawyers for the video game publisher, who include Kelly Klaus at Munger, Tolles & Olse alongside Giuliani, have filed a special motion to strike on the grounds that the game’s use of the Noriega character is protected by first amendment legislation. If Noriega wins, it will open the gates for historical figures of all stripes to censor their inclusion in creative works or even historical documentation, they argue.
“The reason I’m involved in this case is I see the significance of the First Amendment,” Giuliani told reporters. “Should Noriega be allowed to succeed, it would virtually destroy the historical novel, the historical movies like [Lee Daniels’] The Butler and Zero Dark Thirty, in which historical figures are portrayed.”
He added, “If Noriega were to succeed in this case, as I told the judge, Bin Laden’s heirs would be able to sue for Zero Dark Thirty.“
In a response to the game developer’s motion to strike the lawsuit, filed weeks ago, Noriega’s attorneys argued that regardless of the time for which the character is present, the mission that includes him is “a major if not the most key level of the game.” They included numerous snapshots of the gameplay to establish the Noriega character’s prominence, including “Noriega with a shotgun in hand,” “Noriega getting choked” and “Noriega in the first-person shooter’s crosshairs.”
They included something else, too: a statement from Noriega himself in which he explains that he first learned his likeness had been appropriated when his grandchildren played Black Ops II and asked him “why, in the video game, their target was to capture my character.”
Giuliani said that such moments would be the price of Noriega’s legacy. “Wait till they see the picture of General Noriega chopping Hugo Spadafora‘s head off,” he said, referring to the Panamanian doctor who was critical of Noriega’s regime and ended up being tortured to death in 1985. “I wonder how upset they’re going to be by that. The reality is, General Noriega created his history. This is the least of the problems he’s going to have to deal with with his grandchildren.”
In the hearing, judge William Fahey took the matter under submission after argument from both sides.
William Gibbs argued for Noriega that other cases involving the depictions of real people in video games like the band No Doubt in Band Hero ended with rulings in the plaintiffs’ favor.
What differentiates this case from those is that Noriega is a historical figure rather than just a celebrity, Giuliani and Klaus argued. At issue too is the length of time the Noriega figure is shown in the game, with Activision’s lawyers claiming it is a mere 6-7 minutes out of a 6-7 hour game.
The former dictator’s lawyers argue that it could be longer, as players can manipulate the pace at which they play the game, and that the length of the Noriega character’s inclusion is therefore irrelevant.
“Noriega is a part of history,” Giuliani commented after the hearing. “As a part of history, he doesn’t own his own history any more than I do mine or President Bush owns his.
More to come…
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