Giuliani's Call of Duty: defeat Noriega in epic boss battle Former New York City mayor Rudy Giuliani has been brought in to defend video games maker Activision in its case against former despot Manuel Noriega. The company said that Giuliani, now a practicing attorney, would lead the effort to dismiss a suit from Noriega for unauthorized use of likeness. Noriega – imprisoned on murder …
So it seems Activision/Giuliani have two defences; "free speech", and "ad hominem". And they seem to prefer to use the latter.
AFAIK, outside of specifically defined use-cases (journalism, education, parody, etc.), nobody has a right to use someone's likeness without their permission, even if that person has been a bad man.
Ugh no, if you are/were a public figure (being a despot counts) then you pretty much give up your right for your image to be used in material. That is the price of public office and/or being a celebrity. The exception is where you might have an expectation of private life, for example being in the garden spending quiet time with your kids. Why do you think there is such a big deal about celebrity wedding photos? If a paparazzi gets an unofficial photo of a celebrity wedding, that couple will struggle to drag that paparazzi to court even though they did not give their consent.
How else can you tell history (even in an entertainment setting like a video game) if you can't use an image of the person? They are hardly likely to give their consent! Since he is a part of history, using that history to create a story or put forward a point of view is a legitimate part of free speech under the US constitution. In the UK, the court would say he gave up his right to not having his image used when he became a public figure and famous.
> How else can you tell history (even in an entertainment setting like a video game) if you can't use an image of the person?
I think that's the issue isn't it? Activision aren't retelling history.
If someone is a celebrity rapist, can you make a game or film which portrays them eating babies? Can you make a film portraying a fraudster as a murderer? At what point do you have an obligation to tell the truth, if you are invoking real people's identities? "He's a bad man so we can do whatever we like to him," would be facile and a dangerous precedent and someone needs to think through the principles.
We are talking about the US here. You can (and people do) stand on a street corner yelling obscene things like "I hate n****rs" and your right to free speech is protected by the 1st Amendment.
Remember the film U571? The one where Hollywood gave the credit to capturing the enigma machine to US sailors completely ignoring the historical fact that British sailors did that and several died in the process. Artistic licence, 1st Amendment and all that so the families of the sailors had no legal recourse for this tactless re-writing of history.
So saying that someone who is a convicted murderer might have indulged in a bit of kiddy fiddling and satanic rites isn't exactly going to pass the threshold if the examples above are anything to go by. On the other hand saying the respected CEO of a company who has not been charged or convicted of anything has defrauded investors probably would land you in the dock for reputational damage. The point being that he actually had a reputation to protect!
Noriega on the other hand...
> Ugh no, if you are/were a public figure (being a despot counts) then you pretty much give up your right for your image to be used in material. That is the price of public office and/or being a celebrity.
In that case, why do EA pay real money to use the likenesses of professional sports-people they depict in their games? Out of the goodness of their hearts?
No sports people SELL their image through their agents so that they can get revenue from product endorsements etc. IF EA use their image without their consent, the sports person can sue them for loss of revenue on a marketable commodity. A newspaper using an image to highlight the same sports person scoring the winning shot etc as part of its reporting of a game does not have to pay them. I can't claim to be an expert in this area, but this is a commercial transaction and while EA might try to get away without paying, the potential hassle is not worth it and the cost is pretty small in comparison to all their other costs.
Noriega has not marketed his image like a sports person and in view of the fact he is a part of history (and his image in itself is not considered to have commercial value) he would be unlikely to make a case that he should be paid for it.
> sports people SELL their image through their agents so that they can get revenue from product endorsements etc.
You said:
> if you are/were a public figure ... then you pretty much give up your right for your image to be used in material
If they'd "pretty much given up their right to their image", why would *anyone* pay them for something that they didn't have any power to restrict the use of? The athletes would be unable to SELL their image for endorsements, etc. because there would be nobody willing to buy - because nobody would need permission to use their image in the first place.
If the setting of the game includes Panama when he was being ousted then he doesn't really have grounds for claiming it's unauthorised, it'd be like someone making a documentary about American politics over the last 10 years and being told they couldn't have an actor playing the role of George Bush
As for the ad hominem claim, one of the prosecutions accusations is false depiction. This means that what he did (and is now in prison for) is directly relevant to the legal claims being made. Ad hominem is when you attack the person *instead* of the claim, not when the person's past actions are a substantive point of the claims
Agree with others. The man is a 'historic' figure. Any depiction of that time in history has to portray him or it's just pointless. Depending on what they have him do he may have a case for defamation. But given the asshats background, I doubt it.
Specific use case... what if it's an educational game made by a for profit company?
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