Have California's Likeness Laws Gone Off the Deep End?

An alleged misappropriation of Lohan's likeness

As recently noted by Professor Marc Edelman on Forbes, the civil lawsuit filed by Lindsay Lohan against RockStar games for alleged misappropriation of likeness in Grand Theft Auto V is being watched closely for its impact on the ability of video game makers to utilize public figures' images without offering them compensation.  

NFL players and their financial planners are certainly watching that lawsuit closely, as EA and other video game makers routinely distribute sports-themed games that utilize players' attributes.

Now, the latest lawsuit against Activision for its alleged unauthorized use of Manuel Noriega's likeness in Call of Duty: Black Ops reveals just how warped California's right of publicity laws are becoming, unless they are reined in.

In the 2006 case of Kirby v. Sega, the California Court of Appeals had held that the First Amendment protected Sega's incorporation of certain elements of singer Kierin Kirby into the character Ulala.

According to that court, Sega's use was transformative and thus protected. In contrast, as noted by Professor Edelman, is the same California Appeals Court's 2011 decision in No Doubt v. Activision, because that game supposedly involved "computer-generated recreations of real band members."

The distinction between the cases is not clear.

However, what is clear from the Lohan and Noriega cases is that, unless seriously circumscribed, such lawsuits will proliferate and threaten one of the fastest growing areas of cultural expression: video games.

Without a bright line rule that celebrities and video game makers can understand and apply evenly across cases, every aggrieved "celebrity" such as Noriega and Lohan can (and undoubtedly will) flock to California, and find an aggressive lawyer looking to cash in big on the developing legal theory by filing such complaints against software developers and video game makers.

Such cases are easy to file and difficult to dismiss.  Both the prior Sega and Activision cases involved years of litigation and hundreds of thousands of dollars in legal fees.

Noriega Sues in L.A., Demanding "Lost Profits" from Likeness in Game

Noriega's Mugshot

In a newly-filed case in Los Angeles that is likely to even further tarnish the reputation of plaintiffs' lawyers (and possibly intellectual property lawyers generally), ousted Panamanian dictator Manuel Noriega has filed a civil lawsuit against Activision, alleging that his likeness was used without his permission in the recent video game Call of Duty II: Black Ops.

Time magazine reports that Noriega formally accuses the videogame's makers of "wrongly depict[ing]" him as a "kidnapper, murderer and enemy of the state."

In the 1989 invasion of Panama by the United States, Noriega was removed from power, captured, detained as a prisoner of war, and flown to the United States. Noriega was later tried on eight counts of drug trafficking, racketeering, and money laundering in violation of U.S. federal law in April 1992.

Noriega's U.S. prison sentence ended in September 2007; pending the outcome of extradition requests by both Panama and France, for convictions in absentia for murder in 1995 and money laundering in 1999.

France granted the extradition request in April 2010. He arrived in Paris on April 27, 2010, and after a re-trial as a condition of the extradition, he was found guilty again and sentenced to seven years in jail in July 2010.   

A conditional release was granted on September 23, 2011, for Noriega to be extradited to serve 20 years in Panama.  He arrived in Panama on December 11, 2011 where he is currently in prison.

Therefore, even assuming, for argument's sake, that Activision used Noriega's likeness in the game without offering him compensation, it is difficult to understand how Noriega could ever have lawfully received a penny.

Under both state and U.S. federal law (18 U.S.C. §§ 3681 and 3682), convicted criminals have difficulty keeping assets attributable to their crimes. While the U.S. Supreme Court has limited that principle in Simon and Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105 (1991), victim restitution and forfeiture orders are still permissible.

Further, it borders on the absurd to ponder how a dictator who was repeatedly convicted and sentenced under several different nations' laws can have a "reputation" that could be further harmed by a video game.

Even stranger still is that Noriega's attorney is a renowned trial lawyer of Erin Brockovich fame.