In Call of Duty: Black Ops II, players engage in a variety of missions. In some, they encounter nonfiction characters, including a character based on General Manuel Noriega, the former military dictator of Panama. As with movies or books, a creator of a video game might include real-world people as part of its historical narrative, to heighten realism, or for purposes of political satire or social commentary. The First Amendment should provide robust protection for this kind of creative expression. But some terrible court decisions regarding the so-called ‘right of publicity’ have opened the door to censorship by persons depicted in creative works.
A new lawsuit illustrates just how crazy things have become. Yesterday, General Noriega, who is currently in prison in Panama, sued Activision for his depiction in Call of Duty. His lawsuit claims that the game misappropriates his likeness for financial gain, a California state law claim also known as the “right of publicity.” This is not a defamation suit. Rather, Noriega is claiming that Activision included him “to heighten realism in its video game” and this means they should pay up. As one commentator wrote, this is “a lawsuit that beggars belief.”
But the true source of madness here is not General Noriega and his lawyers. Rather, it is the Ninth Circuit’s recent ruling in Keller v. Electronic Arts. In that case, the court found that EA’s NCAA Football game infringed a former college player’s right to publicity. The court dismissed any free speech concerns. The majority wrote that the use of Keller’s likeness did “not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.” In other words, because EA’s game was realistic, it was not protected expression.
Dissenting in the Keller case, Judge Sidney Thomas wrote:
The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings.
Noriega’s lawsuit against Activision shows that Judge Thomas was right. The fundamental premise of Noriega’s case is that his inclusion in the game was for realism and thus was not protected. This is a crazy claim. Works—be they books, movies, or games—should not lose First Amendment protection just because they strive for realism. But the Ninth Circuit’s Keller ruling (and a similar decision from the Third Circuit) encourages public figures to advance exactly this argument.
The Noriega case raises another fundamental issue. Why should a notorious dictator, or any governmental official, even have a right to publicity? Surely we should be able to speak freely about public officials, both to criticize them and to include them in historical works. The First Amendment must provide some limitation on misappropriation and publicity claims. Otherwise the torts could be used by public officials to force the deletion of both their misdeeds and achievements from books, movies, video games and other creative works.
Publicity lawsuits by public officials have thus far been rare. Two of the more noteworthy ones involved political figures who were also entertainers. In 2004, California Governor Arnold Schwarzenegger sued the creators and marketers of a “Governator” bobblehead. The case was settled before there was any court decision. And in 1968, Pat Paulsen, a well-known comedian who had declared himself a candidate for the US presidency, sued a company for selling a mock campaign poster bearing Paulsen’s picture. A New York state court rejected Paulsen’s request to stop distribution of the poster, explaining that by becoming a political candidate his image as a candidate, even a satirical one, became “clearly newsworthy and of public interest.”
It may be that Noriega’s case will fail. The Paulsen court’s reasoning will hopefully be applied there as well, should the case ever get before a judge. But courts dealing with right of publicity claims have tended to take a very ad-hoc, result-driven approach that discriminates against video games and favors more traditional media (taken literally, the Keller decision would prohibit realistic biopics). We suspect that the courts may see a dictator litigating from prison as even less sympathetic than the video game industry. But even if Noriega loses, the mere threat of litigation like this can chill creative expression across media. Courts dealing with right of publicity cases need to respect free speech.