Recently a federal judge in the Eastern District of Texas ruled that copyright infringement claims filed by retired professional wrestler Booker T. Huffman (known as Booker T) against Activision, the developer of the Call of Duty video games, should proceed to trial. The infringement claims revolve around alleged similarities between promotional artwork for the Call of Duty 4 video game and a poster depicting Huffman’s in-ring persona G.I. Bro.
In 2015, Huffman commissioned a poster from the artist, Erwin Arroza, to promote his comic, G.I. Bro and the Dragon of Death. The comic stars a “special operations hero called G.I. Bro,” which bears a striking resemblance to Huffman in his G.I. Bro persona. Following creation of the poster, Huffman distributed copies of the poster at comic conventions and other events.
In 2018, Activision commissioned Petrol Advertising, Inc. to create a series of marketing images of the characters in its Black Ops 4 video game. Black Ops 4, which was released in 2018, was a prequel to the third Black Ops game, and featured many of the same characters as the prior version including the character David “Prophet” Wilkes. The ad agency hired live models and conducted several photoshoots with them in order to create the allegedly infringing marketing images. The ad agency then created a “composite” by adding graphical elements to create the artwork. Activision used this resulting artwork in various promotional posters, billboards, and special edition packaging, some of which included the allegedly infringing “Prophet Image” that is the focus of the lawsuit.
Following release of the promotional artwork, Huffman filed an action for copyright infringement in a Texas federal court. Huffman additionally asserted claims for alleged violation of the Digital Millennium Copyright Act (“DCMA”) alleging that Activision removed the copyright management information from his poster and provided false copyright management information.
Activision filed three motions for summary judgment seeking dismissal on multiple grounds including a lack of standing to sue, lack of access to the original work, and failure to state a claim under the DCMA. The magistrate judge assigned to rule on the motions consolidated the motions and addressed them in the same opinion recommending denial of the motions on all grounds but one.
Activision argued that Huffman had no standing to assert his infringement claims because he had assigned the rights to the “G.I. Bro” character to the WWE, for whom Huffman wrestled. Because Huffman’s poster depicted G.I. Bro a character exclusively licensed to the WWE, Activision argued that only WWE could assert infringement claims involving copying of the G.I. Bro character. Huffman countered that the registration for the poster issued by the U.S. Copyright Office was prima facie evidence of ownership sufficient to survive summary judgment. Huffman also argued that the agreements assigning rights in the G.I. Bro character did not extend to depictions of the G.I. Bro character unrelated to wrestling. The magistrate judge rejected the first argument but found that the scope of the licenses constituted a genuine issue of material fact precluding summary judgment on the issue of standing to sue.
In its second motion for summary judgment, Activision argued that Huffman’s infringement claims must fail because he failed to provide evidence that Activision actually used the copyrighted material to create the allegedly infringing Prophet Image. To prove copying, the Court explained, a plaintiff can provide direct evidence of copying or can establish copying through the use of circumstantial evidence. Since direct evidence can be hard to come by, plaintiffs most often attempt to prove copying through circumstantial evidence. The Court identified two methods for raising an inference of copying: (1) proof of access to the original work and (2) proof that, even in the absence of access, the two works are strikingly similar. The Court found a genuine issue of material fact concerning access to the original work because the poster had been displayed at Comic-Con events that were attended by an Activision employee. The Court also found a genuine issue of material fact concerning striking similarity because the two works “clearly share similarities and potentially even have striking similarities.”
The only argument of Activision that the Court agreed with concerned Huffman’s claim for violation of the DCMA. The Court agreed that Huffman had not presented evidence that Activision removed or altered the copyright management information from Huffman’s G.I. Bro poster. This defeated Huffman’s claim under Section 1202(b)(2) of the DCMA which required proving that the infringer knew “that the copyright management information has been removed or altered.”
Activision has filed objections to the Magistrate Judge’s Recommendation and Report, which the District Court has not yet considered.
The Magistrate Judge’s opinion is available online here.
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