Rudy Giuliani v. Manuel Noriega: Video Game EditionBy
Just when you thought that the lawsuit filed by Manuel Noriega against the maker of Call of Duty couldn’t get any weirder, former New York City Mayor Rudolph Giuliani has entered the fight.
Giuliani has joined the legal team defending Activision Blizzard against Noriega’s lawsuit claiming his likeness was illegally appropriated for its video game, Call of Duty: Black Ops 2. On Monday the company filed a motion to dismiss the case. Giuliani also walked a group of reporters through his legal thinking, which relied partly on the freedom of speech and partly on the timeless battle between good and evil.
At first the Noriega lawsuit seems like a colossal waste of time for everyone involved (except for Noriega himself, who is in prison in Panama and probably doesn’t have much else to do.) But there is a real point of law in question: The case rests on the so-called right of publicity, which gives people control over how their portrayal is used in public. Some states have extended this right to prohibit the use of someone’s likeness in commercial products without his consent. California is one such state, which is why Noriega filed his case there.
Eugene Volokh, a law professor who writes a blog for the Washington Post, wrote this summer that Noriega has a credible claim, although he uses this as evidence that the laws protecting him are “broken and unpredictable.” Activision Blizzard disputes this line of thinking and insists that the Noriega who shows up in its game is a fictional character.
“This is creative fiction where he is the historical figure, but it is not a depiction of what he actually did,” says Giuliani. This is important. Courts have generally said that the fictional adaptation of public figures is legal. If that weren’t the case, the creators of many movies, historical novels, and television sketch comedies would end up in court.
But Giuliani didn’t stop with a targeted legal argument, which will come as no surprise to anyone who lived in New York during his mayoralty. He said repeatedly that Noriega was evil and that courts shouldn’t be giving handouts to outlaws. When asked about previous right-of-publicity lawsuits, Giuliani acknowledged that there have been other such cases and some have even been successful, but he quickly added: “It’s never been litigated by a mass murderer, war criminal, and person like this.”
In legal terms, the motion to dismiss is an anti-SLAPP motion, which protects people from “strategic lawsuits against public participation” that are filed specifically to intimidate people from engaging in protected speech. Anti-SLAPP laws have been seen largely as a way to quash lawsuits over negative reviews on websites such as Yelp and have wide support among free speech advocates.
Giuliani is an interesting choice to be the public face of a defense of the First Amendment. A partial list of the free speech controversies during his tenure in New York include preventing people from gathering for protests; trying to shut down an art exhibit at the Brooklyn museum that he found offensive; implementing licenses for street artists; and suing to have a New York magazine ad that made fun of him removed from public buses.
Another interesting (and probably irrelevant) question is how much Giuliani knows about Call of Duty or video games in general. During his call with reporters, he occasionally referred to Call of Duty as a movie. When asked whether he had any firsthand experience with the game, he has this to say: “I’ve watched the whole thing, but I haven’t played it.”