“Call of Duty” publisher Activision Blizzard has brought in former New York Mayor Rudy Giuliani to help fight former Panamanian dictator Manuel Noriega’s right of publicity lawsuit over his depiction in its “Black Ops II” game.
Giuliani’s role in the case is not just legal, but to sound the alarm over what he thinks will happen should Noriega prevail in his litigation.
“It would destroy, to a very, very large extent, the creative genre that is historic fiction,” Giuliani said in a video statement posted by Activision.
He said it would “open the floodgates” to figures like Osama bin Laden’s family members, Fidel Castro, Bashir Assad or leaders of ISIS or ISIL to demand permission or payment if they are featured in games, movies, TV shows and books.
Activision Blizzard is seeking dismissal of the Noriega case, citing a California’s anti-SLAPP law, designed to prevent litigation from being used to suppress free speech.
A hearing is scheduled on Oct. 16 in Los Angeles Superior Court.
Noriega’s image appears in a small part of the game depicting undercover missions in Panama and South America in the late 1980s. Activision Blizzard attorneys argue that he is not a focus of the game nor is his image mentioned in reviews.
The attorneys argue that free expression outweighs a state law interest in protecting the “fruits of artistic labor,” a test that courts have used in weighing California right of publicity claims. Otherwise, they argue, historic figures and their heirs would have veto power over movies like “Midnight in Paris” and books like “Ragtime.”
“Accepting Noriega’s claim that a historical figure cannot be portrayed without his consent would chill these and other countless other works — from ‘Bill & Ted’s Excellent Adventure’ to ‘Girl with a Pearl Earring’,” Activision Blizzard said in its brief.
Noriega is serving a prison sentence in Panama, after being ousted from that country after a U.S. invasion in 1989.
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.
But Activision Blizaard’s attorneys contend that Noriega “did not build the image he claims the power to control through any ‘artistic labor.’ His notoriety stems entirely from his role in widely known historical events as a dictator and convicted criminal.”
Activision Blizzard is represented by Munger, Tolles & Olson and Giuliani’s firm, Bracewell & Giuliani. Thomas Girardi, who represented Noriega when the suit was filed. did not immediately respond to a request for comment.