Why Rudy Giuliani Is Defending 'Call of Duty' from a Dictator's Lawsuit

I hadn't heard or thought much about Rudy Giuliani recently, but America's mayor just popped back into the news cycle. Thankfully, he's not appearing as a former mayor, nor as a politician at all, but—in a throwback—as a lawyer, defending Call of Duty from an ex-dictator's lawsuit.

This morning, the creators of the franchise, Activision Blizzard, filed a motion to dismiss a lawsuit brought against the company by Manuel Noriega, the imprisoned, former dictator of Panama. Noriega's likeness appears in Call of Duty: Black Ops II, depicted as a kidnapper who gets whacked in the face with a rifle.

Without going too in depth about it, let's say that Noriega had a back and forth relationship with the United States. He was on the CIA payroll for a number of years, rose to being the military dictator of Panama in 1983, but was ousted from power in 1989 by an American invasion of Panama. He was flown to the US where he was found guilty of drug dealing, racketeering and money laundering, and was imprisoned until 2007. Then he was extradited to France where he had already been convicted in absentia of murder and money laundering. In 2011 he was sent back to Panama, where he remains in prison at 80 years old, out of power, but apparently not out of the will to fight.

But, although he's being depicted as a corrupt kidnapper, Noriega's lawsuit isn't about defamation—a tough case to prove for a public figure. Instead, Noriega and his legal team are taking aim at Activision for violating his publicity rights, by using his image without permission or compensation.

Noriega's lawsuit, wherein he is referred to as "plaintiff," alleges that Activision's "use of plaintiff's image and likeness caused damage to plaintiff. Plaintiff was portrayed as an antagonist and portrayed as the culprit of numerous fictional heinous crimes, creating the false impression that defendants are authorized to use plaintiff's image and likeness. This caused plaintiffs to receive profits they would not have otherwise received." As Eddie Makuch over at Gamespot explained back in July, the lawsuit is seeking "damages for unjust enrichment, unfair business practices, and violation of common-law publicity rights."

Did anyone buy Call of Duty for its Noriega-whacking features? Seems pretty unlikely, at least in the United States. The game developers are calling Noriega's lawsuit "frivolous" and asking the Los Angeles County Superior Court to toss it out, as their use of Noriega's likeness "constitutes protected expression," and mentions the dreaded chilling effect that allowing this lawsuit would have on everything from Forrest Gump to Saturday Night Live.

In a teleconference this afternoon, Giuliani explained that Noriega is only a "bit player" in the game, "one of 45 or more characters," he said. Noriega is "not even advertised as a featured player; he hasn't been used to market the game in any way," Giuliani said. He also noted that the scenario featuring Noriega is fictional, and that the use of his likeness is "a small part, one of 45 characters in the game," and that the use of him is "transformative."

"Movies are no different from video games from a legal perspective," Giuliani said.

Giuliani's involvement in the lawsuit seems to come out of left field, but in the teleconference, Giuliani mentioned his tenure as a First Amendment lawyer, and in a video released explaining the motion to dismiss, the former mayor of New York City explains:

I'm involved in this lawsuit because I feel very strongly that the free speech rights involved here are enormously important. I am tremendously offended that one of the worst criminals of the last 25 or 50 years, a criminal I am quite familiar with as the former US attorney in the Southern District of New York. This man is convicted in the United States, in France, and in Panama of killing his own people.

If the motion is not dismissed, then it could go to court. Giuliani wasn't sure yet, if he would be leading defense in the event that the lawsuit is not thrown out.

There's also a sort of personal element at play here. In the teleconference, Giuliani pointed out deciding in favor of Noriega would be a threat to other art forms that use real-life people in fictitious scenarios, including films, like "the great movie Zero Dark Thirty," and also historical fiction, which Giuliani revealed a personal taste for.

"Historical fiction—which is one [genre] that is growing—is important," Giuliani added. "It happens to be one that I enjoy immensely; I read many of these books where presidents, CIA directors, sometimes even me, are depicted in the book, sometimes accurately sometimes inaccurately."

The theme of being "offended" came up a couple of more times, and brought to mind Giuliani's endearing/enervating style that we've missed/not missed at all as he's receded from the public eye. "I am so offended that this man is trying to seek millions and millions of dollars from the company that makes Call of Duty—a good American company," Giuliani said. "[Noriega's] making a mockery of the American legal system! If you don't get upset about that, you have no sense of justice."

But alas, America's mayor isn't much of a gamer. As Giuliani explained in the teleconference: "I've watched the whole thing but I haven't played it."