In October of last year, Los Angeles Superior Court Judge William Fahey granted video game publisher Activision Blizzard, Inc.’s motion to strike the complaint filed by former Panamanian dictator Manuel Noriega, in which the currently imprisoned Noriega claimed that Activision’s depiction of him in the popular video game Call of Duty: Black Ops II violated his right of publicity, among other things. Black Ops II is a realistic role-playing game in which players assume the role of American soldiers on various missions. The game, which is set in the context of two military campaigns and features avatars of other historical figures, depicts Noriega as a criminal and enemy of the state.

After considering briefing and argument from both sides, Judge Fahey held that Activision’s use of Noriega’s likeness was transformative, and therefore protected by the First Amendment. The court’s order stated that “[t]he complex and multi-faceted game is a product of [Activision’s] own expression, with de minimis use of Noriega’s likeness.” Noriega’s depiction was not “the very sum and substance of the work.” Notably, declarations submitted by Activision in support of its motion established that Noriega was one of more than 45 characters, including other real-life people, that appeared in the game, and that Noriega appeared in only two of the game’s eleven missions.

Yesterday, in Davis v. Electronic Arts Inc., the Ninth Circuit affirmed the Northern District of California’s denial of EA’s motion to strike the complaint of various former NFL football players, in which the players alleged claims for violations of their statutory and common law rights of publicity, conversion, trespass to chattels and unjust enrichment arising out of EA’s use of their likenesses in the video game Madden NFL. In so doing, the Ninth Circuit relied substantially on its previous decision in Keller v. Electronic Arts. Like Activision, EA also argued that the transformative use defense barred the players’ claims. The Ninth Circuit, however, rejected the transformative use defense. Unlike the California court in Noriega, the Ninth Circuit focused on the collective use of the players’ likenesses rather than the use of any one plaintiff’s likeness individually, finding, among other things, that “Madden NFL replicates players’ physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life – playing football for an NFL team.” The court added that “[n]either the individual players’ likenesses nor the graphics and other background content are transformed more in Madden NFL than they were in NCAA Football.”

Arguably, borrowing the Ninth Circuit’s reasoning in Davis, Noriega may have had a (slightly) better chance of prevailing on his claims. After all, Black Ops II depicted Noriega in a setting for which he is known in real life – as a wanted war criminal. The same could be said for the Davis plaintiffs – had the court considered whether each individual player’s depiction was “the very sum and substance” of Madden NFL as a whole, would the result have been different?

Of course, there are marked differences between the two cases. Noriega epitomizes the unsympathetic plaintiff. Black Ops II involves a complex set of military missions set against various historic and fictional backdrops, while Madden NFL has a more singular purpose – playing football with and as your favorite “historic” players. The game’s Field of Dreams-esque appeal, the Ninth Circuit found, was essential to EA’s “main commercial purpose.” Those differences, among others, could account for the courts’ divergent approaches in Noriega and Davis.

It remains to be seen whether EA will appeal the decision to the United States Supreme Court or if the case will proceed at the district court level. Either way, given the recent spate of right of publicity claims hitting courts across the country, surely the application of the transformative use defense will be revisited again.