Did you realize Manuel Noriega was still kicking? I thought sure the former Panamanian dictator was dead, but apparently he’s still around, albeit old, in prison, and apparently possessed of a litigious streak.
Eugene Volokh brings the news t
hat Noriega has filed a publicity rights lawsuit against Activision, claiming that a character in a recent “Call of Duty” video game is based on Noriega. Volokh then goes on to show how the troubling state of publicity rights law creates all sorts of potential threats to culture. If people have broad control over how their “images” are used – even when those “images” are composites, or used for parody – there will be a massive chilling effect.
And this isn’t only a concern for culture and the arts. It also applies to news reporting and criticism. I’ve seen firsthand how people who don’t want to be talked about online try to use publicity rights claims to shut discussion down. Until and unless this increasingly-popular claim gets reined in – and the appropriate level is to limit it to commercial advertising – this danger is going to persist.
Aren’t we talking about misappropriation of likeness for commercial gain under the broader tort of invasion of privacy? Surely Noriega has the same right to control use of his image in commerce as any other person. How is the appropriation of likeness protected when it’s use is primarily for private commercial profit, and not for political/social commentary associated with parody? Establishing that the animation is based on or even sufficiently like to be taken for him is another matter.
It’s a question of the breadth of these laws. I’d prefer to see publicity rights turned into a much narrower tort that only applies where someone uses one’s image without their consent to PROMOTE a product. When people can claim that this game or that book or this film contains a character that looks like me, and that’s sufficient to state a claim, that’s a big drag on creativity and expression.