First Amendment trumps ‘publicity’

Published on Monday, 21 July 2014 00:29 - Written by

Manuel Noriega is upset. In case you haven’t been keeping up with the deposed Panamanian dictator and drug trafficker, he’s now occupying a cell in his native Panama, after having served time in the U.S. and France.

And now he’s suing the American company Activision over his portrayal in a video game.

And here’s where it gets weird.

“Manuel Noriega joined Lindsay Lohan this week on the roster of mockable public figures filing lawsuits over unauthorized video game cameos,” reports Bloomberg Businessweek. “In a complaint filed in a California court, Noriega complains that he’s ‘portrayed as the culprit of numerous fictional heinous crimes’ in Call of Duty: Black Ops 2, a game made by Activision Blizzard. The former Panamanian dictator, of course, is the culprit of numerous heinous crimes in real life. So, yes, his protests seem a bit ridiculous at first glance. But this isn’t a libel case. Noriega isn’t suing Activision for unfairly portraying him as a criminal; he’s suing it for not cutting him in on the money it made doing so.”

The real issue here is a bad law usually referred to as “right of publicity.”

The California version of the law says that “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services … shall be liable for any damages sustained by the person or persons injured as a result thereof.”

An exception is made for news reports, but even that has been challenged.

It’s a law made for enterprising tort lawyers, explains law professor Eugene Volokh, who can seek damages on behalf of their clients for “emotional distress.”

“The problem, of course, is that people use others’ names and likenesses in ‘products’ or ‘goods’ all the time, even setting aside the news exception,” Volokh writes in the Washington Post. “An unauthorized biography, which is probably not ‘news’ or ‘public affairs’ as such, is a commercial product or good, and uses the name or likeness. So are fiction movies and books that revolve around real events, and include photographs, ‘likeness[es],’ or even just the names of famous people: Think ‘Forrest Gump’ or ‘Midnight in Paris.’”

This is a chipping away at the First Amendment for commercial purposes.

There’s a solid case to be made that real-life football players, for example, who are portrayed in video games like Electronic Arts’ “NCAA Football,” ought to be compensated. The sales of the game are directly tied to the prominence of those players.

But declaring a “right to publicity” that is more important than the First Amendment is ridiculous.

Here’s the thing. Famous people, by and large, sought that fame. Lindsey Lohan, as Volokh points out, also is suing Activision — but Lohan has spent years forcing herself on a hapless and undeserving American public. Now she wants to be paid for being part of the public consciousness?

As Volokh points out, this kind of law “poses serious risks … in fields far outside video games.”