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Why a ridiculous lawsuit, and a grandstanding defense, may do some good for video games

Rudy Giuliani — "America's Mayor!" — is the celebrity lawyer representing Activision in a weird lawsuit brought by a former banana republic dictator. Few expect the guy — Manuel Noriega — to succeed, and litigating it gives Call of Duty a great publicity vehicle, fighting in real life against the kind of villain frequently depicted in the game.

Giuliani said he's doing so because of "the significance of the First Amendment," but in a news conference in Los Angeles this week he offered a rather interesting take on the civil liberty he's defending.

"If creative rights have to be sacrificed, they shouldn't be sacrificed for someone like Noriega," Giuliani said.

Noriega is suing Activision over his unauthorized appearance in Call of Duty: Black Ops II. Yes, he's not portrayed in a flattering light in it, and Noriega's suit alleges the portrayal injures his reputation (though Giuliani and others might say it is merely consistent with it). But this isn't purely a defamation lawsuit, in which truth is in an ultimate defense in the United States, and being a public figure requires published untruth to be borne of actual malice.

No, the key here is Noriega is suing because Activision used his likeness without permission, the same as a college football video game using amateur athletes' likenesses without theirs. And Activision's defense, as Giuliani articulated this week, sounds a lot like one Electronic Arts used in the litigation against the NCAA Football series, which a federal court of appeals ultimately struck down, leading to a settlement and the cancellation of that series.

Giuliani's more salient point is that Noriega is an historical figure whose deeds are public domain. Granted, that's a lot more solid when it involves a head of state and not a quarterback for Rutgers. But as noted by Noriega's lawyer (even he gets one), the band No Doubt sued Activision over its unauthorized depiction in Band Hero and won, and no one would argue Gwen Stefani isn't a public figure.

Giuliani is, to the public anyway, litigating this like a defamation suit, which is easy because Noriega is a class-A contemptible human being. He ran a "narcokleptocracy," whose Scrabble word score barely exceeds the revenue it pulled in running cocaine. He had rivals tortured and murdered. The stuff he's accused of doing in Black Ops II's flashbacks to the 1980s, basically, and even worse.

"I think a man that engaged in selling $200 million of cocaine in the United States, who knows how many children he killed, a man who was a dictator of his country in which he tortured people for nine years, a man who laundered money in France, a man who chopped the head off of one of his allies and then was convicted in three countries, who is sitting in jail in Panama, trying to recover because he is a minor, minor figure in a very excellent game, Call of Duty by Activision, is an outrage," Giuliani said.

That's not the point, though, and he knows it. He's trying to get a judge to understand Noriega as an historical figure and not just a celebrity, which is a very intriguing part of the law. Few would argue that Lou Gehrig or Jackie Robinson aren't historical figures, but if they're appearing in a baseball video game (and they have before) their estates have to be paid.

On the other hand, John F. Kennedy and former secretary of defense Robert McNamara appeared in the first Call of Duty: Black Ops, and no money changed hands between Activision and their heirs. President Obama has appeared not only in a White House ceremony for championship teams in NBA 2K, he's even shown up as a coach in the game's career mode after his term is over. He hasn't sued because of the political disaster and distraction that would represent. And besides, POTUS likes basketball a lot.

Look, Noriega is, in all likelihood, going to lose this. But if he does, it shouldn't be because he's an asshole and a murderer, as Giuliani said — and let's give Rudy benefit of the doubt, perhaps he said so offhandedly. It should be because when you're a head of state, your persona essentially belongs to the public, one of the subtler traditions of freedom of expression in the U.S.

That doesn't mean Noriega's lawsuit isn't useful as U.S. law comes to recognize video games as works of historical fiction, the same as films and books. Electronic Arts recently fought a claim by Bell Helicopter over the unauthorized use of its aircraft in the Battlefield series, initially saying it wanted to establish some precedent for all developers and publishers. EA settled the suit before it got to that point, however.

So Activision's decision to fight, and Giuliani's defense — grandstanding though both may be — helps draw the boundaries for what video games may or may not do, assuming they are in this to the end.

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