DuetsBlog Collaborations in Creativity & the Law

Executing Noriega?

Posted in Law Suits

As some of you may recall, I posted about a lawsuit Manuel Noriega brought against purveyors of the Call of Duty video game franchise arising from his depiction in the game.  In essence, I suggested that Noriega’s lawsuit was unlikely to succeed because his fame and notoriety that he accused the game of misappropriating arose from ghastly acts that he committed in connection with his dictatorship in Panama, and the law would avoid rewarding such notoriety.

By way of update, Activision and its attorneys (who include Rudy Giuliani) recently filed a motion to strike Noriega’s Complaint.  Activision relies on California’s Anti-Slapp statute and the contention that Activision’s depiction of Noriega is protected by the First Amendment.  Slapp stands for “strategic lawsuit against public participation.”  As you can guess, then, an “Anti-Slapp” statute is intended to curb practices where targets of public criticism file  lawsuits to censor, intimidate, and silence critics.

It will be interesting to see how this motion plays out.  While the brief is very well written, and while my knowledge of California Anti-Slapp motions is minimal, my initial reaction is that this just doesn’t feel like a proper case for an Anti-Slapp motion.  As set forth in California’s statute itself, the purpose of the statute is to “encourage participation by all segments of our society in vigorous public debate related to issues of public interest.”   Activision admits throughout its brief that its portrayal of Noreiga is fictionalized.  And while this might ultimately help it prevail if the case moves past the Anti-Slapp stage, I’m not sure it helps in getting this case kicked out now.

As a practical matter, it doesn’t seem to me that a party’s right to use historical characters to lend context to fictional narratives has any relation to “public debate related to issues of public interest.”  The only thing the brief really says about the public interest is “there is an obvious public interest in, among other things, the historical contexts of Panama, Central America, and other ‘hot spots’ of the late 1980’s that the game depicts, as well as in creative works about the deployment of U.S. special forces in foreign countries.”  While this statement (which was relegated to a footnote) may be true, I don’t understand how an admitted fictionalization of these historical contexts supports vigorous public debate.

Its very possible that the Court will just want to get rid of this case early, and this gives it an opportunity to do so. I would not, however, consider this motion a slam dunk.