Video game developer Activision Blizzard, Inc. recently won a key victory in the ongoing battle over the right of publicity when a California state court judge dismissed former Panamanian dictator Manuel Noriega’s well-publicized lawsuit. Noriega had alleged that his image and likeness were improperly used in the blockbuster video game “Call of Duty: Black Ops II.” Determining that the First Amendment protected Blizzard, the court dismissed Noriega’s complaint with prejudice.

The New Noriega

In the ninth iteration of Blizzard’s popular Call of Duty video game series, gamers step into the role of a commando, taking part in 11 missions set in various eras. Noriega appears in two of the game’s missions, but the character voices fewer than 30 lines of dialogue in his brief appearance.

In July, Noriega filed suit in California alleging that Blizzard’s use of his image and likeness portrayed him as “an antagonist and ... that his negative portrayal in the game infringed his right of publicity and constituted unfair business practices. The court saw it differently, finding that Blizzard’s First Amendment right to free expression outweighed Noriega’s right of publicity. Critically, the court found that Blizzard’s use of Noriega’s likeness was “transformative” and therefore did not violate Noriega’s right of publicity. The court reached this determination not because the Noriega character itself was an entirely new creation, but because the character appeared in the context of a “complex and multi-faceted game” that was the “product of [Blizzard’s] own expression,” and because Blizzard’s use of Noriega’s likeness was de minimis.

The court also concluded that inclusion of the character in the video game failed to harm Noriega’s reputation. Noriega was alleged to have committed numerous heinous crimes during the 1980s and early 1990s while serving as a general in the Panamanian army and then as dictator of Panama. The court noted that, given his well-known reputation and wide reporting of his actions, it is hard to imagine any evidence of harm to Noriega’s reputation by his inclusion in the game.

Landscape of the Right of Publicity Pre-Noriega

This case represents a big win for video game developers after a string of losses. For example, in Keller v. Electronic Arts, a class of former college football players sued Electronic Arts alleging that the use of their likenesses in the “NCAA Football”video game series violated the players’ rights of publicity. The Keller court concluded that the game developer’s First Amendment defense was not viable because the use of former players’ likenesses was not transformative. Notably, theKeller court focused its analysis on the literal depiction of specific characters in the NCAA Football game, rather than on the overall context of the work. Thus, because Electronic Arts replicated the physical characteristics of the football players and because the game allowed users to manipulate the characters in the performance of the same activity for which they are known in real life, the use was not considered transformative. The Noriega court, in contrast, focused its analysis in part on the overall expressive nature of the video game as a whole. The Kellercourt also noted that the characters at issue were central to the commercial success of the video games.

Content Creators’ Takeaway: Transformative and Contextual Creations

If you are creating movies, books, songs, or other expressive works and plan to include an image or likeness of a celebrity, ensure that the work is truly transformative. Otherwise you invite liability under right of publicity laws. TheNoriega decision may indicate a greater willingness to consider the entire context of a work when determining whether a use is transformative, as opposed to focusing on the depictions of the specific characters at issue. Such a decision could provide a good precedent for content creators to defend their works. Practically, courts may also draw a distinction between works portraying historical figures and those that portray commonplace actors, applying broader First Amendment protection to the former. Moreover, where use of a celebrity’s image or likeness in a work becomes more insignificant to the overall “sum and substance” of the work, the viability of a First Amendment defense improves.