I read this in the paper today. (By which I mean July 17th when I originally wrote this.)
Apparently there’s a video game company that makes this very
popular video game called “Call To Duty.”
And it seems that, in their latest incarnation of the “Call To Duty”
series, they are depicting former Panamanian dictator Manuel Noriega as a
“kidnapper, murderer, and enemy of the state.”
Noriega’s attorneys, the article reports, are suing the
video game company for portraying Noriega in their “Call To Duty: Black Ops II”
without his permission. The video game’s attorneys are standing on the
company’s First Amendment right to free (creative) expression, which generally
protects books and movies portraying current or once existing actual human
beings. (I am not certain about
animals.)
What Noriega’s attorneys appear primarily upset about is not the depiction of their client as “a kidnapper,
a murderer, and enemy of the state.” The
thing they’re objecting to is that their
client, General Noriega, is receiving no compensation
for being depicted as “a kidnapper, murderer, and enemy of the state.”
During other periods of history, the public accusation of being
“a kidnapper, murderer, and enemy of the state” would have provoked moral outrage,
a demand for an apology, and quite possibly a duel. Today, it triggers an offended outcry for a
legitimate piece of the action.
The argument on Noriega’s behalf going,
“Maybe I was ‘a kidnapper, murderer, and an enemy of the
state’, and maybe I wasn’t. It was a
long time ago, I don’t remember anymore. Anyway, we all
did crazy things when we were young.
“The real question
is, why should a video game company cash in on my reputation as ‘a kidnapper,
murderer, and an enemy of the state’, while the person who earned that reputation as ‘a kidnapper, murderer, and an enemy of
the state’ gets nothing?
Noriega’s position is bolstered by a recent court decision
(upheld on appeal) in which a 40 million dollar settlement was arrived at
between another video game company,
which, according to the decision, had inappropriately made use of the
likenesses of college athletes and the particular college athletes they had
inappropriately misused.
Noriega’s attorneys would unquestionably argue against the
distinguishing specifics in the two cases – in one situation, we are talking
about young college athletes (who, we should remember, are paid nothing at all for
their services), and in the other situation, an acknowledged, possibly
convicted – I am ignorant on the specifics – “kidnapper, murderer, and enemy of
the state.”
Noriega’s attorneys would assert that, front and center – to
the exclusion of extraneous circumstances such as crimes against humanity – there
is a principle involved here.
The truth, however, is:
There are two conflicting
principles involved.
Maybe – your personal likeness being your property – nobody’s
likeness should be depicted in video games without permission (and the
financial compensation that
permission would almost certainly entail.)
On the other hand, maybe, pursuant to the First Amendment –
enacted to protect unpopular speech rather than the issue under dispute, as the
“Founding Fathers” were unlikely to have had video games in mind – the
unfettered appropriation of our likenesses is perfectly okay.
Like him or not, it is hard to deny that the mentioning of
the petitioner’s being is “a kidnapper, murderer, and enemy of the state” would
be prejudicial to the proceedings.
Whatever his questionable
personal history, they are still using the former dictator’s likeness without his
permission.
Or, as the former dictator himself might contend,
“I deserve a slice of the multi-billion dollar video game
pie, notwithstanding the fact that I am ‘a kidnapper, a murderer, and enemy of
the state.’ I mean, what has that got to do with getting what I
deserve?”
It seems to me, if the courts are to be consistent in their
adjudication, having awarded 40 mil to a group of fresh-faced college athletes
for the inappropriate employment of their likenesses, they would have to rule similarly in favor of the eighty
year-old, pockmarked “kidnapper, murderer, and enemy of the state.”
To decide otherwise would be simply unfair. (And arguably prejudicial to Panamanians.)
At the risk of losing public approval and support, I am unequivocally
siding with Noriega.
I hope he takes them to the cleaners.
And by the way, you guys?
Don’t even think about using my likeness in a video game about blog
writers!
Unless we are talking “elephant bucks” compensation.
There are certainly some interesting issues here (and this is the kind of thing I write about myself in a weekly column called net.wars). Thank you for calling it out, as I'd missed it.
ReplyDeleteThe athletes' suit (I read in a few hastily-consulted news stories) was brought by the NCAA, and once the settlement is agreed players have the right to opt in or opt out. (Opting in means they can't bring their own suit later; opting out means they can - but they'll be on their own.) Rights to use athletes' images have a long history of commercial value (ask Roger Federer, or ), and I'm not surprised they won this.
In California and some other states and countries "personality rights" allow public figures the right to control commercial exploitation of their images. The California law was passed (I read here: https://en.wikipedia.org/wiki/Personality_rights) in 1985 and grants control for 70 years after the personality's death, in line with copyright on books, movies, music, etc. I knew about this because some years ago I wrote a piece about Philip K. Dick's missing robot head - http://www.theguardian.com/technology/2006/sep/14/copyright.guardianweeklytechnologysection - and there was a question of whether it violated such rights (We can do irony for you wholesale).
In many places, though, there is *also* a law you don't mention that bars convicted criminals from making money off their crimes (by, for example, selling their story) - the so-called "Son of Sam" laws (https://en.wikipedia.org/wiki/Son_of_Sam_law).
So, now: Noriega has been convicted in several locations, so we can say he's guilty. Panama is not one of the countries with personality rights laws AFAIAA. But the video game company (I had to look this up), Activision, is based in California. So presumably Noriega is taking advantage of California law (which is well established because of movie and TV stars diligently using it to protect their images).
So there's the added twist that if Noriega succeeds in getting money from Activision, the state of California could seize it and pay it to his victims (or, more likely, into a fund for use in some socially responsible way).
Next time someone asks me for the definition of "chutzpah" I will point them at this story.
wg
Just last week my brother and I were wondering whatever happened to Old Pineapple Face. Now we know, he's back in Panama, in prison. He's been in somebody's prison (US & France, too), since what, 1989? And I thought I had a somewhat dead-end career.
ReplyDeleteAs for the legal challenge...not surprising that someone would bring such 'an opportunity' to Noriega's attention. Seems to me that any favorable judgment for him would simply be for using his image w/out his permission, thus, he would not be profiting from his crimes, just from his notorious reputation. However, in the long run, he'd probably make more money, much faster, if he'd only spilled a big cup of very hot coffee on himself.
I wonder if the various news networks who reported on señor Noriega's conviction, murderings and kidnappings would also have to pay him a slice of their profits.
ReplyDeleteOkay, I am really tempted now to write a "Bloggers" video game, just so I can use Earl's likeness without permission and cause a kerfuffle.
ReplyDeleteAlan: I think not. There's a difference in that news broadcasts are factual and facts cannot be copyrighted, at least in the US. Anyway, there's no court that would give Noriega anything for news reporting on his career. Fictional exploitation using images (video games) for commercial gain...I can see where some lawyer might have persuaded him he'd have a chance at a case. I wish groklaw were still running to tell us how good it might be.
ReplyDeletewg