Jul 17 2014
Noriega sued Activision Blizzard, Inc. and a subsidiary in Los Angeles County Superior Court on July 15, alleging that the popular first-person shooter “Call of Duty: Black Ops II” features a mission to capture a villainous game character readily identifiable as Noriega by appearance, role, and even name. Noriega complains that he is portrayed in the game “as a kidnapper, murderer, and enemy of the state,” and that he has suffered resulting harm from the “damage to his reputation and denial of [his] rights of publicity.” Noriega further claims that the game also features other non-fiction characters whose images are likewise misappropriated to heighten the game’s realism and consumer appeal–translating to increased sales revenue which unjustly enriches the defendants, to Noriega’s (and others’) detriment.
Noriega’s lawsuit is the latest of several recent lawsuits alleging the violation of publicity rights through a videogame character. Earlier this month, actress Lindsay Lohan sued the makers of “Grand Theft Auto V” in New York Supreme Court upon similar allegations—a lawsuit which echoed a lawsuit filed in the same court in February by “Mobster Wives” star Karen Gravano. The Gravano lawsuit has been the subject of several motions to dismiss premised substantially on the defendants’ free speech rights under the First Amendment, and universal recognition of videogames as a form of protectable expression. Noriega’s lawsuit, though similar, relies on the arguably more expansive provisions of California’s Right of Publicity Statute (Civil Code section 3344). On the other hand, it also presents a unique factual circumstance, because Noriega is a political figure of historical significance (and not a celebrity such as a movie actor), and is not a United States citizen—factors which could prove significant to the Court when weighing Constitutional free speech considerations against Noriega’s alleged right of publicity under California law.