Nobody Wins In The Dictator vs Call of Duty

By Alec Meer on July 17th, 2014 at 1:00 pm.

This was yesterday’s news of course, but it seems too bleakly funny to neglect mentioning here. Former Panamanian dictator Manuel Noriega is suing Activision from his jail cell, claiming the use of his name and image as a CODBLOPS 2 baddie is unjust and misrepresentative. While his lawyers do note that “Plaintiff was portrayed as an antagonist and portrayed as the culprit of numerous fictional heinous crimes” (as opposed to his all numerous non-fictional heinous crimes)” the nub of the challenge seems to be less hurt feelings and more “creating the false impression that defendants are authorized to use plaintiff’s image and likeness.” In other words, filthy lucre. Figures.

Noriega was banged up for murders, racketeering, drug deals and pretty much anything you’d expect to find on a long-time villain’s CV (along with being on the CIA payroll for a while), but what he’s concerned about is “unjust enrichment, unfair business practices, violation of common-law publicity rights, and lost profits” on the part of Activision. Perhaps he simply doesn’t realise that Call of Duty games essentially misrepresent everyone and everything?

In any case, it seems may not have much of a, well, case. Games lawyer Jas Purewal told the BBC that “Noriega isn’t a US citizen or even a resident. This means that his legal claim becomes questionable, because it’s unclear on what legal basis he can actually bring a case against Activision.”

There’s been no comment from Activision, naturally.

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41 Comments »

  1. Simes says:

    Should have used “Namuel Moriega”.

  2. Premium User Badge

    Joshua says:

    I am suprised if anyone who played CodBlops II would know who this guy is.
    I certainly wouldn’t have.

    • N'Al says:

      I’ve played CodBlops II.*
      I know who Manuel Noriega is.**

      * And was quite positively surprised by it, actually.
      ** Although, admittedly, I wouldn’t have known all his crimes in particular detail.

    • StarkeRealm says:

      I played the single player campaign a couple times, and had a pretty solid grasp of who Noriega was going in. Blops and Blops 2 are a freaking goldmine of Cold War era history references. From Operation 40, to the Soviet Prison Camp at Vorkuta, to Number Stations, to fears of Soviet Infiltration and Sleeper Cells… The games are nuts, but they’re particular brand of well researched crazy.

      To be fair, if I hadn’t gotten my BA in Political Science, I probably wouldn’t have known much about Noriega beyond his name coming up intermittently on reruns of Miami Vice… but, still.

  3. rustybroomhandle says:

    The word “dictator” sounds like the colloquial term for some kind of disgusting genital growth.

    “How you doing, Mike?”

    “Not good, Nigel, I have to go to the hospital to have a dictator removed.”

    “Ouch, Mike… ouch.”

    • gunny1993 says:

      “Did they give you a cream”?

      “Well i’ve been applying UN Peacekeepers for about a month now, but they just seem to stand around doing nothing in their compound”

      “Guess your natural oils aren’t the ones anyone is interested in”

  4. Great Cthulhu says:

    Noriega isn’t a US citizen or even a resident. This means that his legal claim becomes questionable, because it’s unclear on what legal basis he can actually bring a case against Activision.

    Ah yes, only Americans have rights in America. Lovely country. Very civilized.

    • Neoprofin says:

      As another poster mentioned, it’s an odd comment because he absolutely has grounds to sue in U.S. courts, people do it all the time. I don’t expect him to do very well though as Personality Rights are limited by the 1st Amendment protections for “artistic expression” which is the protect EA successfully used against Jim Brown for a similar lawsuit based on the argument that his likeness was of “artistic relevance to the work and does not explicitly mislead as to the source or content of the work”.

      • Great Cthulhu says:

        I sincerely hope you’re right. The events of recent years have made me increasingly cynical when it comes to the US government and its treatment of foreigners.

      • Dux Ducis Hodiernus says:

        Except what you’re talking about sounds like it’s based on just his closeness to the character in an actual game. For manuel Noriega, he’s being named and directly referenced, not just an imitated fictional copy of him.

        • tetracycloide says:

          On the other hand historic fiction and unauthorized autobiographies are legal. ‘Publicity rights’ are basically just made up bull shit.

    • Premium User Badge

      lurkalisk says:

      Aha! But what you fail to consider is… A bunch of things. But most importantly, context (a working knowledge of human history and international politics get special mentions though). Which is to say that being from another country, living in that country, and more specifically in a prison, puts the claims of unjust enrichment just a wee bit outside any country’s comfort zone when it comes to applying their own laws abroad, especially if said law is intended for relatively not-so-heinous acts. I don’t know why you find this surprising, this is hardly behaviour unique to the US.

      Also, do you really want the US to ramp things up and claim the whole planet as being under their legal jurisdiction for banal shit like this?

  5. Michael Fogg says:

    Puzzling statement by Jas Purewal, US laws don’t exist solely for the benefit of US citizens of residents, others can demand legal protection as well, For example if a third country citizen is screwed over by a US-registered company then it’s perfectly sound to sue the company before a US court and cite US regulations as grounds.

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      Gap Gen says:

      There have also been cases of people being sued for libel in the UK even if neither party is British.

    • Twitchity says:

      As far as I know, California has not expressly thrown out a right of publicity suit because a plaintiff is a foreign national, as long as the foreign national’s home state does not bar such a suit. I have no idea what Panama’s laws are regarding publicity, but it’s likely that they have relatively strong IP protection due to the bilateral FTA with the US. Noriega actually may have a pretty strong case here: he’s a living person, his actual identity was appropriated for use, and California has a fairly expansive idea of what it means to violate the right of publicity. In addition (though not required under CA law), Noriega can plausibly claim that his depiction in CODBLOPS2 is injurious to his public identity, which is quite a coup when you realize he was a CIA-backed narcodictator with his own right-wing death squads.

      • Neoprofin says:

        I think precedent goes against him. A California court ruled against Jim Brown in James Brown vs Electronic Arts because games are a protected artistic expression under the 1st Amendment and his likeness was of “artistic relevance to the work and does not explicitly mislead as to the source or content of the work”.

        • mike2R says:

          That does rather seem to put a bullet in the back of the head of his case, so to speak.

        • Twitchity says:

          It’s an interesting question. Brown was decided as a Lanham Act claim, which is separate from the right of publicity, so unless there’s an endorsement claim in Noriega’s filing — which I don’t think there is — Brown shouldn’t apply (though the court could still use the Rogers test if it so desires).

          Instead, Noriega is filing based on misappropriation and defamation, which is a whole different kettle of tortured Central American political activists, and will probably invoke the “Transformative Use” test. Noriega is faithfully reproduced in the game, so there’s no transformative aspect to his likeness (EA previously lost on the merits on that particular argument); thus the primary issue is whether, in fact, his placement as a public figure in a fictional, nonparodic context is sufficiently transformative as to invoke First Amendment protection. (See, for example, Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013); In Re NCAA Student-Athlete Name & Likeness Litigation, 2011 WL 1642256 (N.D. Cal. May 2, 2011); etc.)

          Imagine, for example, that instead of Noriega, CODBLOPS2 had, say, digitized representations of Texas gubernatorial candidate Wendy Davis, right-wing pundit Sean Hannity, or popular actor Alec Baldwin engaged in illegal and reprehensible conduct in a nonparodic context.

          Even so, I’d think, on balance, that EA is more likely to win than not, but I also think Noriega has a valid claim here to pursue, and that a ruling on it will provide clarity to a notoriously murky area of law. It’s probably worth noting that David Petraeus is also simulated in CODBLOPS2, evidently without his knowledge or consent, so EA obviously feels they have a solid right to use public figures in their work.

          • Neoprofin says:

            You’re clearly a bit better educated about this, so thanks for the read.

            My bigger question is what Noriega stands to gain from this. i know that he was at least at some point married and had a number of children but I’m having trouble finding any information about the wife and daughters. It doesn’t seem to me that the money would be of much value to him consider his age and incarceration.

          • Twitchity says:

            Nice thing about being a murderous ex-dictator is that, like Gucci Mane, you don’ need no reason. I’d bet this has less to do with the US and European game-playing public, and more an attempt to litigate his image in the court of Panamanian opinion. (I’m assuming that he learned about CODBLOPSDOS by way of Panama’s media.) Dictators used to absolute power never really do adjust to being ousted; as jackals in winter, they often spend their last years trying to prove that they were indeed the good guys in whatever morality plays are acted out in their heads.

      • TheMightyEthan says:

        He’s a public figure, so Activision is almost certainly in the clear.

        But yeah, it has nothing to do with him not being a US citizen/resident, that doesn’t even kind of stop him from suing them.

  6. kwyjibo says:

    I stopped CODing at MW3, so never got round to BLOPS2. But BLOPS1 was insane, nobody could take it seriously, and the game knew that.

  7. Lionmaruu says:

    Funny thing, a awful person suing an awful company, sounds about right. This may be the best and funniest thing a dictator ever did…

    • mike2R says:

      Um, maybe getting things a little out of proportion there…

      Activision may do some things in the marketing and developing of computer games which are not too popular with some gamers, but I really don’t think they deserve that implication of equivalence.

      • Chuckleluck says:

        Activision poisoned our water supply, burned our crops, and delivered a plague onto our houses!

    • Dances to Podcasts says:

      Someone is clearly not familiar with the funny stuff the Kims of Korea get up to.

    • dethtoll says:

      Grow up.

  8. Universal Quitter says:

    I’ll be honest. As soon as I saw this story yesterday, the first thing I did was check to see if RPS was talking about it.

  9. Tei says:

    I applaud this.
    Every human being has rights. Even the ones you hate the most. The worst person on the planet deserve a fair trial. So even a dictator deserve to have the right a judgment if he think is image is abused.

    I know normal people think “Laws exist for criminals”, but that is stupid. Laws exist for everyone, the same law that apply to criminals will be applied to you. Is another reason to try to stop bad laws from passing.

    • TheMightyEthan says:

      He’s a public figure, which under US law gives him greatly reduced rights to control his image.

    • TacticalNuclearPenguin says:

      What happens if one discovers that fair trials are a pipedream though?

  10. Smion says:

    I guess he figured if Oliver North is making money off the game, he might as well.

  11. Shadowcat says:

    Man, Hitler’s lawyers are going to have a field day.

  12. HadToLogin says:

    Alec, some serious problem with keyboard today? You mistyped “lawyers” :)

  13. Arglebargle says:

    It’s not like Noriega was doing that much different from other allies of the USA at the time.

    The great thing about Noriega is that you can find tons of pictures of him arm in arm with his good buddy American politicians and the like back when he was still toeing the line. Kissenger used to vacation down there, spending time on Noriega’s yacht. I’ve always suspected that in advance of the Panama invasion, there was a CIA or Seal team hitting Noriega’s palace to sieze all the incriminating photos and videos Noriega took of his American ‘friends’.

  14. po says:

    I”d love to see the Streisand Effect hit this. Perhaps a ‘Manuel Noriega IS an evil b*stard’ DLC, with a share of the profits donated to Panamanian charities.