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.

Battlefield 3 Video Game May Be Too Close to Reality, Judge Rules

A federal judge has denied Electronic Arts' motion to dismiss a trademark infringement lawsuit involving true to life helicopters featured in its popular video game, "Battlefield 3."

The popular videogame -- which Electronic Arts sold 5 million copies of in its first week on the market -- accurately depicts the AH-1Z, UH-1Y and V-22 helicopters, manufactured by Textron Innovations and Bell Helicopter Textron.

Battlefield 3 features modern-day armed conflict role playing on land, air and at sea.  Game characters use genuine U.S. military weapons and vehicles, ranging from tanks and jeeps to planes and helicopters.

Textron and Bell had alleged in their Complaint that consumers are likely to view the images of its helicopters in the game and infer that the manufacturers endorsed or sponsored the game, when they did not.

Electronic Arts moved to dismiss the Complaint on the theory that it was merely engaging in nominative fair use when depicting the helicopters, and that such expression is protected by the First Amendment.


The Court disagreed, finding that "[a]lthough consumers are unlikely to think Textron has entered the video-game business, Textron has alleged sufficient facts to support the inference that the game explicitly leads consumers to believe it is 'somehow behind' or 'sponsors' 'Battlefield 3.'"

The same parties had previously clashed over Electronic Arts' depictions of Bell-manufactured vehicles in the "Battlefield Vietnam," "Battlefield Vietnam: Redux" and "Battlefield 2" video games, but the parties had previously reached a confidential settlement agreement over those uses.

The recent ruling invites a host of interesting questions about the accurate depiction of items in everyday life in video games and in other expressive media. 

For example, if a movie director desires to present a true to life war scene showing the use of an AK-47 assault rifle, does that depiction entitle the gun maker to sue? Judge Alsup's opinion suggests that such an outcome is possible.

"It is plausible that consumers could think Textron provided expertise and knowledge to the game in order to create its realistic simulation of the actual workings of the Bell-manufactured helicopters," Judge Alsop wrote.