Professional wrestler and 5-time WCW champion “Booker T” lost his lawsuit against video game publisher Activision after a four-day trial, where the federal jury in Texas determined that Activision did not violate Booker T’s copyright in the “G.I. Bro” character.
In 2019, Booker T sued Activision for copyright infringement, alleging that the Call of Duty character “Prophet” infringes upon Booker T’s copyrighted alter ego of “G.I. Bro.” In 2015, the Booker T created a comic book called G.I. Bro and the Dragon of Death. The comic’s storyline follows a retired soldier named “Book” who is taunted by his old enemy and alter-ego G.I. Bro. Notably, the G.I. Bro character is a fictitious character complete with backstory, as opposed to a replica of Booker T’s likeness. Booker T alleged that Activision’s Prophet character infringed his copyright in the G.I Bro character. Booker T’s claims, however, did not concern Activision’s in-game use of the Prophet character. They were instead based on a single image of the Prophet character that Activision used in marketing its Call of Duty game.
Booker T also alleged that Activision violated the Digital Millennium Copyright Act by allegedly removing copyright management information from Booker T’s copyrighted works in an alleged attempt to conceal Activision’s infringement of Booker T’s copyright. Essentially, Booker T claimed that Activision’s use of the Prophet character in the advertising at issue was a replica of the G.I. Bro character, sans Booker T’s copyright management information.
Activision response to Booker T’s allegations included the following:
First, Booker T did not have standing to bring his copyright infringement claims because Booker T no longer owned the copyright in the G.I. Bro character. According to Activision, Booker T transferred his rights to the G.I Bro character to WWE. Indeed, Booker T had used the G.I. Bro character as a gimmick in the ring while wrestling and thereby allegedly transferred his rights to the character to WWE (Booker T’s employer at the time).
Second, the Prophet character as depicted in the advertising in question did not infringe any copyright that might exist in the G.I. Bro character. Activision allegedly created the advertising featuring the Prophet character in conjunction with an advertising agency, using a live actor and model William Romero. Activision then created the Prophet character in question by rendering images of Romero, without reference to any other images. Furthermore, Activision argued that the Prophet and G.I. Bro characters as depicted were not substantially similar. Some of the differences Activision noted between the depiction of the two characters include: (i) different weapons used; (ii) the different manner in which the characters held their respective weapons; (iii) different clothing worn; (iv) different hairstyling and headdresses worn; (v) different eye color; and (vi) different physical posturing.
Third, due to Activision's alleged independent creation of the Prophet character, Activision did not remove any copyright management information from the G.I. Bro character. As such, Activision argued that Booker T’s DMCA claim must fail.
Finally, Activision argued that Booker T had failed to meet his burden in demonstrating the requisite nexus between the alleged infringement and Activision’s gross revenue from indirect sales associated with the alleged infringing use.
The jury ultimately decided in Activision’s favor. The publicly available jury verdict form indicates only that Activision did not infringe Booker T's copyright in the G.I. Bro Poster, without further explanation of its reasoning. Although we don't know what argument the jury found most compelling, this case is a win for video game companies and demonstrates at least one jury’s willingness to side with the video game publisher in a video game character infringement lawsuit
Huffman v. Activision Publishing, Inc. et al., 19-cv-50-RWS (E.D. Tex)