In his ruling, Judge William H. Fahey agreed with Activision counsel Rudy Giuliani’s contention that Noriega’s assertion of his right of publicity would have infringed upon Activision’s First Amendment right to free expression. Fahey found Activision’s use of Noriega’s likeness to be sufficiently transformative to merit fair use as “caricature, parody, and satire.” Noriega is already known as a “notorious public figure,” and his suit “failed to provide any evidence of harm to his reputation. Indeed, given the world-wide reporting of his actions in the 1980s and early 1990s, it is hard to imagine that any such evidence exists.”
Related: Noriega’s Call of Duty lawsuit an “outrageous Offense” to basic protections, Giuliani says
Giuliani released a statement soon after the ruling expressing his relief that the “absurd lawsuit” was squelched. “This is not just a win for the makers of Call of Duty, but is a victory for works of art across the entertainment and publishing industries throughout the world.”
Noriega filed suit against Activision in July 2014 from his prison cell in Panama over his appearance in Call of Duty: Black Ops II. The judge’s easy dismissal of the case could set precedent for a very similar lawsuit brought against Rockstar Games and Take-Two Interactive by celeb Lindsay Lohan, who alleges that her likeness was unlawfully used in Grand Theft Auto V. That case was filed in New York, also in July, but has not yet been resolved.
