George S. Patton’s Heirs Sue Over Use Of General’s Likeness In Videogame

506008906The heirs of renowned United States Army General George S. Patton have filed the latest lawsuit to allege that a videogame wrongfully misappropriates the persona of a historical figure.  The lawsuit echoes claims asserted earlier this year by deposed Panamanian dictator Manuel Noriega against the publishers of the Call of Duty videogame franchise, and presents Constitutional issues generally not present in right of publicity actions by celebrities against videogame publishers.

Maximum Games is the alleged publisher/distributor of the videogame HISTORY Legends of War: Patton.  On November 19, 2014, CMG Worldwide Inc. (the Patton family’s exclusive worldwide agent for the license and commercial use of General Patton’s name, likeness, and persona) sued Maximum in California federal district court, claiming that Patton’s feature in the game and game packaging constitutes a false designation of origin and/or endorsement, and infringes valuable rights of publicity held by the Patton family and its assignee.

The case presents atypical First Amendment issues because of Patton’s undeniable role in history.  In its Complaint, CMG notes Patton’s prominence as one of the highest-ranking generals in command of U.S. forces in World War II, and his enduring legacy as a war hero and colorful personality–attributes which, CMG alleges, make Patton’s name and persona commercially valuable.  However, Courts have suggested that historical prominence weighs in favor of a First Amendment defense to right of publicity lawsuits.

When weighing an individual’s rights of publicity against a First Amendment defense, Courts generally focus on the way the defendant has used the celebrity’s likeness.  If the use is sufficiently “transformative” (i.e., if the celebrity’s image or persona is changed or distorted), then the First Amendment precludes a right of publicity claim because the likeness is just a component part of new expression.  On the other hand, if the celebrity’s raw image is the “sum and substance” of the work in question, the First Amendment does not bar a right of publicity claim.  This is because the defendant’s patent intent is to capitalize on the celebrity’s image and fame rather than upon any new “expression.”  (The band No Doubt was therefore able to maintain a Constitutionally viable claim against the publishers of the videogame Band Hero, even though the band was depicted in fictitious venues singing songs by other artists.) 1442

By comparison, last month the Los Angeles County Superior Court dismissed a right of publicity lawsuit by Manuel Noriega against the makers of Call of Duty: Black Ops II.  Despite Noriega’s literal depiction in the game, the Court found defendant’s use to be “transformative” based on a number of considerations.  Prominent among them was Noriega’s undisputable notoriety during the Cold War years in which the game was set.   (The Court devoted a full page of its order to a chronicle of Noriega’s rise and fall as a Panamanian general and dictator.)

Arguably by the same token, General Patton is one of the “raw materials” from which an author of World War II fiction may permissibly draw– as is General Montgomery or Field Marshal Rommel.  Along this same vein, the Los Angeles Superior Court cited California Supreme Court authority holding that authors of creative works should generally be allowed to weave famous individuals of the time into their works, to paint a more complete picture and without the threat of a lawsuit.

Noriega’s historical importance was not the beginning and end of the discussion, however.  The Los Angeles Superior Court also found it significant that Noriega is not central to the game (he appears in only 2 of 11 missions), and players of Call of Duty: Black Ops II cannot choose to “be” Noriega during game play.  By contrast, General Patton seems to be the centerpiece of the game now at issue in federal court.  The court in the Patton litigation is therefore presented with allegations more conducive to a finding that Patton’s fame is the draw of the game.  This may be sufficient to withstand a challenge to the lawsuit at the pleadings stage, and to allow CMG’s claims to proceed on the merits.