On Thursday, Rudy Giuliani, the ex-mayor of New York city, went to the Californian supreme court to defend the hit video game Call of Duty: Black Ops II against the imprisoned Panamanian dictator Manuel Noriega. Many readers may need a few moments to take all that in.
At the hearing, Guiliani insisted that a lawsuit brought by Noriega, seeking damages from the game’s publisher, Activision, should be dismissed as meritless. Even for an entertainment industry used to such legal wranglings, this is a bizarre state of affairs. But it is one Giuliani is taking very seriously.
“This is a very important case because of its possible precedential value,” he says in a phone call to the Guardian, just hours before he his appearance at court. “Noriega is a historical figure of some prominence, and he’s been included in a small way in this video game. Games are, for legal purposes, considered the same as movies and books, so if he can censor this, if he can recover, then every person with historical significance who’s included in a book or a video game would then be able to censor their involvement and that could seriously interfere with the creative rights of authors.”
It was back in July when lawyers representing Noriega, who is serving 20 years in a Panamanian jail for human rights violations and political killings, filed a lawsuit against Activision. The contention is that the Cold War-based game Call of Duty: Black Ops II features a depiction of Noriega, specifically in scenes where CIA operatives attempt to work with the dictator, who later betrays them. Noriega claims that Activison did not ask to depict him in the game, and as his appearance heightens its realism – a marketable facet of the title – he is entitled to damages.
At the hearing, William T Gibbs, the Chicago-based attorney representing Noriega, cited a similar case, brought by the pop group No Doubt, who sued Activision after their inclusion in the music game, Band Hero. The band had given over image rights for the product but said they hadn’t agreed for their avatars to be depicted performing the songs of other artists. The case was settled out of court.
Celebrity and history
Giuliani’s response is that the Noriega case is different because the depiction of historical figures in fictional works is protected by the first amendment. “Noriega was the most notorious criminal of the 1980s,” he says. “It would be impossible to write about narcotics trafficking, drug dealing or Latin American crime in that period without writing about Noriega.
“He created a place for himself in history, and when you do that, you don’t own that history. President Bush, President Obama … they do not own their place in history, people are entitled to write about them critically, people are entitled to write about them in novels. If all these people had a right of publicity and were able to recover, you would prevent this entire genre of historical fiction from existing.”
If the case does go to court – and Superior Court Judge William Fahey is still to decide after last week’s hearing – it is likely Guiliani will call on a much earlier legal precedent for support. In the 1979 case, Guglielmi v. Spelling-Goldberg Productions, the nephew of silent film star Rudolph Valentino attempted to sue the TV production company, after the airing of a TV movie based on the actor’s life. The suit was dismissed however, and the court summary notes:
Valentino was a Hollywood star. His life and career are part of the cultural history of an era. As the title of respondents’ film suggests, Valentino became a “legend,” a symbol of the romantic screen idol and lover. His lingering persona is an apt topic for poetry or song, biography or fiction. Whether respondents’ work constitutes a serious appraisal of Valentino’s stature or mere fantasy is a judgment left to the reader or viewer, not the courts.
For very different reasons, Noriega is similarly a part of the cultural history of the era – the contention then is that a precedent has been set.
Transformation, fiction and law
Giuliani is, however, presenting with a secondary argument, that of “transformative use”. Freedom of speech under the First Amendment of the United States allows for the depiction of real-world figures if the author makes enough obvious fictional modifications. Giuliani is certain Call of Duty is covered.
“Noriega is shown in entirely fictional circumstances,” he says. “He has a very small role, less than six minutes, and he is performing things that he never did. At one point he leads a Panamanian army to find a drug dealer named Menendze - that never happened.
“The way the supreme court of California defined the test was, if you take a public figure and you synthesise their character into other roles, then you’ve have transformative use. It’s also about whether you’re stealing someone’s reputation [for monetary gain]. However, there is no CoD marketing based on Noriega - he is not mentioned in the adverts, or on the cover – there were 1500 reviews of this game and Noriega wasn’t mentioned in a single one. If you’re not used in the marketing then you haven’t met your burden of proof and the case should be dismissed.”
So why is this sort of image rights action becoming so common in the games industry? Last year, two college athletes brought a successful case against Electronic Arts for their depiction in an American football game; and now Hollywood actor Lindsay Lohan is attempting to sue games publisher Rockstar claiming that the character of Lacey jonas in Grand Theft Auto V is based on her.
“I think because video games are a newer genre, you’re going to have a lot more testing of [the law],” says Giuliani. “But this is a different kind of case to the Lohan one. This is not a creative artist, who, like Lohan, has created a certain image, reputation and career for themselves, and is suggesting that someone is trying to acquire that from them. This is someone who has thrust himself into history as a murderer, a torturer and a dictator - there has been no artistic creation.”
History in the making
Giuliani, of course, knows what it’s like to be a historical figure under scrutiny. As an attorney in the eighties he took on the Five Families of the New York mafia in a series of prosecutions – earning a price on his head in the process. During his tenure as the mayor of New York, from 1994 to 2001, he was a controversial and divisive presence, but is remembered for steadfastly guiding the city in the wake of the 9/11 terrorist attack.
“There have been three or four books written about me, some of which I seriously object to, some of which I agree with,” he says. “I was the mayor of New York and during that time I created a history, and people have the right to write about that accurately, inaccurately and in a fictional way - I have no financial right to recover for that.”
Activision, and any other video game companies thinking of setting their games in modern history, must now wait on Judge William Fahey. The lawsuit could be dismissed outright, or a date could be set for an expensive and potentially defining case. There will no doubt be a lot of interested parties watching – the games industry is, after all, worth $60bn a year, Call of Duty alone makes a billion dollars a year in revenue. Whatever happens, in the realm of personal image rights versus freedom of expression, the story will not end here for the games industry.
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