L.A. Superior Court Tosses Noriega “Right Of Publicity” Lawsuit Under California’s “Anti-SLAPP” Statute

imagesMPZRJS2VThe Los Angeles County Superior Court has dismissed deposed Panamanian dictator Manuel Noriega’s lawsuit against the creators of the “Call of Duty” videogame franchise, finding that his claims inappropriately target defendants’ Constitutional right to  free speech in violation of California law.

Noriega sued Activision Blizzard and a subsidiary on July 15th, alleging that the defendants incorporated his image and likeness into the first person shooter “Call of Duty: Black Ops II” without his permission.  He further claimed that the use (i.e., his alleged depiction in the game as a villainous perpetrator of numerous fictitious and heinous crimes) was damaging to his reputation, and allowed defendants to capitalize on his persona in the form of boosted videogame sales.  He asserted claims against the defendants for allegedly violating his statutory rights of publicity, for “unjust enrichment,” and for “unfair business practices.”

The defendants responded by filing a special motion to strike Noriega’s complaint, pursuant to California Code of Civil Procedure section 425.16–California’s “Anti-SLAPP” Statute.  A “SLAPP” (Stategic Lawsuit Against Public Participation) is defined by California law as a lawsuit “brought primarily to chill the valid exercise of the Constitutional rights of freedom of speech and petition for the redress of grievances.”  Section 425.16 mandates the dismissal of a lawsuit as a SLAPP where two factors are shown to be present:  (1) the plaintiff’s claims arise from any act of the defendant in furtherance of his or her right of free speech under the United States Constitution; and (2) the plaintiff cannot establish a probability of prevailing on his claims.

Noriega necessarily conceded that the first prong was satisfied:  it is now widely recognized at law that videogames such as “Call of Duty: Black Ops II” constitute protected speech.  Regarding the second prong, the Court found that Noriega’s right of publicity was outweighed by defendants’ First Amendment right in the expression.  Preliminarily, the Court recognized cases in which videogame developers were found to have violated celebrities’ publicity rights by incorporating their likenesses into videogames without significant change, for the purpose of capitalizing on their fan base.  The Court found Noriega’s case distinguishable on numerous grounds.  Primary among them was Noriega’s status as a contemporaneous historical figure:  “Contemporaneous events, symbols, and people are regularly used in fictional works.  Fiction writers may be able to more persuasively, or more accurately, express themselves by weaving into the tale persons or events familiar to their readers.  The choice is theirs.  No author should be forced into creating mythological worlds or characters wholly divorced from reality.  The right of publicity derived from public prominence does not confer a shield to ward off caricature, parody, and satire.  Rather, prominence invites creative comment.”  The Court found it noteworthy that Noriega’s opposition to the motion did not contest any of the events leading to his historical notoriety.

The Court also determined that defendants’ use of Noriega’s likeness was “transformative”–i.e., that its value to “Call of Duty: Black Ops II” was not through the commercial value of Noriega’s persona, but through the role of the persona in telling the game’s story:  “The publicly available photographs of Noriega used to create his avatar were part of the extensive ‘raw materials’ from which the game was synthesized.  Noriega’s depiction was not the ‘very sum and substance’ of the work.  The complex and multi-faceted  game is a product of defendants’ own expression, with de minimis use of Noriega’s likeness.”  In this regard, the Court found Noriega’s case different from an earlier right of publicity lawsuit filed by the band No Doubt against the creators of the videogame “Band Hero.”  The Court in the No Doubt case had declined to dismiss the lawsuit upon defendants’ Motion to Strike pursuant to Section 425.16, finding (unlike in the present case) that defendants’ use of No Doubt in the game was patently intended to appeal to and capitalize upon the band’s fan base.

Upon these grounds, the Court determined that Noriega’s right of publicity claim could not survive a First Amendment defense.  Noriega’s pendent claims for unjust enrichment and under California’s Business & Professions Code failed as premised upon the same claims.