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Manuel Noriega Loses 'Call of Duty' Publicity Suit Against Activision

By Mark Wilson, Esq. on October 31, 2014 | Last updated on March 21, 2019

Wait, Manuel Noriega is in court and he's the plaintiff? It's more likely than you think. Apparently following on the heels of Lindsay Lohan, Noriega -- yes, the same one who was the military dictator of Panama from 1983 to 1989 -- sued Activision, maker of the game "Call of Duty."

Noriega -- currently in prison in Panama -- claimed that "Call of Duty: Black Ops 2" portrayed him by name and likeness "as the culprit of numerous fictional heinous crimes" in the game. Earlier this week, though, a Los Angeles County Superior Court dismissed Noriega's case with prejudice.

SLAPP in Action

Noriega said that Activision infringed on his right to his name and likeness. Activision moved to strike the complaint using California's anti-SLAPP law, claiming that the game was an expression of a matter of public interest and Noriega likely wouldn't succeed on the merits. As a matter of procedure, the burden shifts to Noriega to show that the lawsuit has merit.

Which he couldn't do. The framework for this case can be found in No Doubt v. Activision, a 2011 case that found the band No Doubt in a similar lawsuit with Activision over its depiction in the game "Band Hero." A feature of the game, unknown at the time to No Doubt, would allow the in-game band to sing non-No Doubt songs. That wasn't cool with them, so they sued Activision, which raised the anti-SLAPP flag.

Don't Sue, I Know What You're Thinking, So Please Stop Explaining

Whether the lawsuit has merit for SLAPP purposes is a function of potential constitutional defenses. The No Doubt court said that Activision couldn't use the First Amendment defense because its game wasn't "transformative." If Activision had altered the band in some new and interesting way, they might not have a claim that their right of publicity was infringed. But that's not what happened. Activision painstakingly motion-captured No Doubt in order to recreate them in the game, which was a big reason for buying the game in the first place.

And Noriega? The trial court said that Activision had "transformed" Noriega's likeness in "Call of Duty," meaning the First Amendment defense was available. This is because Noriega isn't the centerpiece of a "complex and multi-faceted game [that] is a product of defendants' own expression, with de minimis use of Noriega's likeness." While Noriega appears in the game, he's relegated to the background and serves only as a benchmark to establish that the character is in 1980s Panama.

Plus, the court added, summarizing Noriega's tenure as a "notorious public figure," it's hard to imagine the game could harm his reputation more than he had already.

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