Former New York Mayor Rudy Giuliani said that jailed former Panamanian dictator Manuel Noriega’s right of publicity lawsuit against Activision Blizzard for his depiction in a “Call of Duty” game is an “abomination” that threatened to stifle creative expression in historic fiction and movies.
But appearing at a Los Angeles court hearing on Thursday, Noriega’s attorney William T. Gibbs said that his client’s case wasn’t about “the mere mention of someone in an historical novel; it’s the use of someone’s image and likeness” without their permission.
After an hourlong hearing, Superior Court Judge William Fahey did not indicate when he would decide on Activision Blizzard’s motion to dismiss the case.
Noriega is serving a prison sentence in Panama after being ousted as the country’s leader following the U.S. invasion in 1989.
Noriega’s image appears in a small part of “Call of Duty: Black Ops II,” which depicts undercover missions in Panama and South America in the late 1980s.
He sued Activision Blizzard in July, challenging its depiction of him as a kidnapper and murderer and claiming that he “was portrayed as an antagonist as the culprit of numerous fictional heinous crimes, creating the false impression that defendants are authorized to use plaintiff’s image and likeness.” Noriega claimed violation of right of publicity, unjust enrichment and unfair competition.
In court documents, Noriega said that he first became aware of the existence of the game when his grandchildren asked him why he was being portrayed as a villain in a major title.
Activision Blizzard undoubtedly has increased attention to the case in the hiring of Giuliani, who said that in part he was drawn to the litigation because of the First Amendment issues.
In the court hearing, Giuliani suggested that Noriega does not have a right of publicity in the same way that a celebrity like Paris Hilton would because the dictator “made himself an historic person,” citing Noriega’s notorious acts of torture, cocaine trafficking and other crimes.
“He made himself a piece of that history,” Giuliani said at the hearing.
Giuliani said that he is an historic figure because he was mayor of New York during September 11 and he doesn’t have a claim against projects that have been done about him, including books and a TV movie starring James Woods.
“If we lose this case, I have about 50 lawsuits I could file,” he quipped.
But Fahey asked Giuliani why writers and producers couldn’t just hire lawyers to seek consent.
Giuliani said that the problem with such an approach is that “if it was an unflattering portrait of me, I wouldn’t give my consent,” allowing him to have an ability to censor a work.
Under such a standard, in fact, “Bin Laden’s heirs could have sued for ‘Zero Dark Thirty,'” Giuliani said.
Nevertheless, Gibbs cited cases where courts sided with NCAA athletes led by Sam Keller who sued over their unauthorized depictions in an Electronic Arts video game. Noriega’s likeness in the “Call of Duty” game, he said, depicts him “down to a T. Same nickname, everything.”
“This is exactly Noriega, in exactly the setting in which he gained his fame,” he said.
Giuliani, however, argued that Noriega’s depiction in the game was transformative, as he interacts with fictional characters and “does things he never did.” Moreover, his likeness was not used in advertising and was not mentioned in any of the 1,300 reviews.
As for Noriega’s concerns about his grandchildren, Giuliani told reporters afterward, “Wait until they see the picture of General Noriega chopping Hugo Spadafora’s head off,” referring to one of Noriega’s critics who was severely tortured and killed in 1985. “The reality is that General Noriega created his history. This is the least of the problems he has to deal with with his grandchildren.”
He added, “I am morally outraged that a man like Noriega is seeking to inhibit our creative rights in the United States. If creative rights have to be sacrificed, they shouldn’t be sacrificed for a man like Noriega.”
Activision Blizzard is seeking dismissal in part by citing California’s anti-SLAPP law, designed to prevent litigation from being used to suppress free speech.
Gibbs had no comment after the hearing.