Update: Manuel Noriega, Lindsay Lohan Take Aim at “Call of Duty,” “Grand Theft Auto” Video Game Makers

The Superior Court of California has granted Activision’s motion to dismiss with prejudice Noriega v. Activision/Blizzard pursuant to California’s Anti-Slapp Statute.

In its October 27, 2014, decision, the court explained that the defendant’s use of former Panamanian dictator Manuel Noriega’s likeness in the video game “Call of Duty”  was de minimis and the character was transformative.  In this regard, the court determined the character created for the video game was more like “the defendant’s own expression rather than the celebrity’s likeness.”

The court also distinguished this lawsuit from the No Doubt v. Activision lawsuit, where the “characters” were really lifelike depictions of the rock band in the “Band Hero” video game.

We will continue to monitor case developments and courts’ treatment of anti-SLAPP, First Amendment and other defenses in these types of cases, including a watchful eye on Lindsay Lohan’s similar “Grand Theft Auto” suit in New York.

Manuel Noriega, Lindsay Lohan Take Aim at “Call of Duty,” “Grand Theft Auto” Video Game Makers

Recent high-profile case filings demonstrate the trend of using traditional privacy laws in the context of today’s high-tech world.  A lesson learned from such filings, and to be learned as the cases progress, is that to avoid potentially costly litigation one must exercise an abundance of caution before using a person’s likeness, or even a close parody, in commercial activities.

In July, former Panamanian dictator Manuel Noriega sued Activision Blizzard, the maker of the popular game “Call of Duty,” in a California Superior Court.  In the complaint, Noriega claims Activision misappropriated his likeness and portrayed him as “a kidnapper, murderer and enemy of the state.” While Noriega resides in a Panamanian prison for, among other things, money laundering and murder, the game suggests he is “the culprit of numerous fictional heinous crimes.”  The complaint also lists violations of the right of publicity, unjust enrichment, and unfair business practices and seeks unspecified damages.

Under California Civil Code §3344, it is a violation to use a person’s likeness in products without consent.  Violators are liable for actual damages sustained and “any profits from the unauthorized use that are attributable to the use.”

Former New York Mayor Rudy Giuliani is one of the attorneys representing Activision and, on September 22, the defense filed a special motion to strike under California’s Ant-SLAPP statute – California Code of Civil Procedure §425.16, which insulates a defendant who has been sued for free speech.  In particular, the defense maintains that were Noriega to succeed, it would hinder numerous artists and writers from being able to utilize historical figures in their creative works.

Noriega’s suit comes on the heels of an action Lindsay Lohan filed in New York against Take-Two Interactive and Rockstar Games, the makers of “Grand Theft Auto V.”  In the June complaint, Lohan alleges the defendants used “her image, likeness, clothing, [and] outfits” and that the “Lacey Jonas” character plot line tracks Lohan’s real life events.  Portions of the game take place at Chateau Marmont, an LA hotspot Lohan and other celebrities frequent – though Lohan was banned for failing to pay a $46,000 bill.

Based on these alleged similarities, Lohan sued for violation of her right of privacy under New York Civil Rights Law § 51.  (In New York, there is no common law right of publicity.)  To prevail, Lohan must prove the defendants used her name, picture, or voice for advertising purposes within the state of New York without consent.  In August, the game makers filed a motion to dismiss and requested sanctions asserting Lohan’s claims are frivolous.

These are not the first instances of “celebrities” suing a video game maker for using his or her image without permission.  In 2012, No Doubt, a popular rock bank, settled with Activision when the company allegedly used its likeness in the video game “Band Hero.”  Earlier this year, Electronic Arts, another video game maker, settled two lawsuits with former NCAA athletes for $60 million following an appeals court determination that a video game maker has no right to use their likeness without permission or compensation.  More than 100,000 athletes were estimated to share in the proceeds.

Given these trends that push the boundaries of privacy, there are surely more cases to come and we will keep a watch and report on new developments.