It has emerged that imprisoned former dictator of Nicaragua, General Manuel Noriega, has launched a claim in the State of California as against Activision, the producers of the hugely successful ‘Call of Duty’ game series. Noriega alleges that one of the villains central to the game ‘Black Ops II’ is based upon him. Reportedly Noriega is suing for “unjust enrichment, unfair business practices, and violation of common-law publicity rights”. An extract from the suit reads as follows:
“In an effort to increase the popularity and revenue generated by BLACK OPS II, defendants used, without authorization or consent, the image and likeness of plaintiff in BLACK OPS II.
Defendants’ use of plaintiff’s image and likeness caused damage to plaintiff. Plaintiff was portrayed as an antagonist and portrayed as the culprit of numerous fictional heinous crimes, creating the false impression that defendants are authorized to use plaintiff’s image and likeness. This caused plaintiffs to receive profits they would not have otherwise received.”
This follows the recent news that actress Lindsay Lohan has herself launched a claim against Rockstar Games, the creators of the hit Grand Theft Auto series of games, alleging that central character, Lacey Jonas, is a thinly-guised representation of her, both in her appearance, and also in the apparent representation of events from Lindsay Lohan’s life.
One would not necessarily think that Noriega and Lohan had much in common. Both claims hinge on the unauthorised exploitation of ‘publicity rights’, and successful claims in this sphere are not without recent precedent: only earlier this year, a class action brought on behalf of US College American Football players culminated in a $40 million settlement with games manufacturer Electronic Artists, and a further $20 million settlement with the licensing arm of the National Collegiate Athletic Association, in payment for years of using the image of players without authorisation.
We are reluctant to comment on the prospects of success of such a claim in the United States, but it is interesting to speculate on how such a claim would succeed in the United Kingdom? ‘Image Rights’ are not officially recognised in the UK, and so the ability to control the use of one’s ‘personal brand’ is more limited. We would speculate that the most enterprising and imaginative of Claimant solicitors could potentially construct a claim on any of the following two grounds:
1. Libel. Firstly, in each case it would have to be proven that the characters were identifiable as Noriega and Lohan respectively. Assuming (perhaps fairly) that this hurdle could be cleared, it would need to be proven that the representation of the Noriega, or Lohan, causes serious harm to their respective reputations. Such a claim could prove difficult, as the defendants in each instance would argue that their reputations were at a pretty low starting point, with Noriega still being in prison and Lohan with her repeated brushes with the law. This argument could prove persuasive.
2. False Endorsement. The case of Irvine v Talksport, where racing driver Eddie Irvine successfully sued a radio station which had suggested that he endorsed the station in question, establishes the law of false endorsement in the UK. Essentially transposing the principles of the law of passing off, this allows a potential claimant to sue for the fee he or she might have received if they had endorsed the product or service in question. However, underpinning any such claim is the likelihood of confusion: i.e. a consumer is likely to be confused in inferring an endorsement on the part of the claimant, where in fact no such association exists. Even though the ‘bad girl’ image may be a selling point for the likes of Miley Cyrus and/or Lindsay Lohan (less so Noriega for whom the sale of his commercial image is not a priority), it is unlikely that a Court would be persuaded that an inference of endorsement by Lohan of the respective games should be drawn; for this to be the case, at the very least one would have expected Lohan to have lent her real name.
This is the innate contradiction in Noriega’s claim: somehow allying the fact that he is ‘the culprit of numerous fictional heinous crimes’ with ‘the false impression that defendants are authorised to use plaintiff’s image and likeness’ simply does not wash: if one is identified as the perpetrator of various crimes, the assumption is that it is not an ‘authorised’ product. There is a reason why ‘unauthorised’ biographies are often juicier, and the authorised ones perhaps more sanitised.
Whilst they are currently safely enshrined in the law of Guernsey, would only for Noriega and Lohan that Image Rights were recognised in the United Kingdom…! This would permit a claim for unauthorised usage of image rights – and issues as to whether or not the owner of the rights had a poor reputation to start with, or whether or not the player of the games would infer an endorsement, simply fall away.