Professional wrestler Booker T should be allowed to proceed with his copyright lawsuit against Activision over a “Call of Duty” video game character, a federal magistrate judge in Texas said.
Booker T. Huffman sufficiently alleged that the character Phantom created by Activision Blizzard Inc. bore “striking similarity” to his copyrighted drawings of G.I. Bro, U.S. District Court for the Eastern District of Texas Magistrate Judge Roy S. Payne said in recommending the court toss Activision’s motion to dismiss.
The Nov. 27 recommendation shows that images attached to a complaint, and not just written allegations, can help establish a copyright claim’s validity. Activision argued Booker T didn’t explicitly allege that the works were strikingly similar. But the side-by-side image comparison in his complaint could allow a jury to find the two works strikingly similar, Payne said.
Payne also recommended denying Activision’s argument that the case should be transferred to California because Booker T filed in the wrong venue. A U.S. Supreme Court ruling that patent lawsuits must be filed in a defendant’s home district doesn’t apply to copyright suits, he said.
‘Chose to Steal’
Booker T collaborated with an independent contractor in 2015 to create G.I. Bro, a character based on a persona developed during his wrestling career and portrayed that character at events, according to his complaint. The contractor and his employees created art and produced comic books featuring a retired special operations soldier who fights old enemies that taunt him as G.I. Bro, the complaint said.
Activision’s 2018 video game, Call of Duty: Black Ops 4, featured Prophet, a character who in prior Call of Duty games had 90% of his body replaced by “cybernetics” to enhance his fighting ability. The new game depicted Prophet before his enhancements, and “chose to steal” G.I. Bro to depict him, Booker T alleged.
Booker T needed to specifically allege either that it had access to G.I. Bro before creating a substantial similar character, or that the characters were so “strikingly similar” that access could be presumed, Activision argued. But Payne said the images were enough.
Activision also argued Booker T filed the complaint before registering his copyrights, which would bar an infringement lawsuit under the Supreme Court’s March decision in Fourth Estate Public Benefit Corp. v. WallStreet.com. Booker T said that the U.S. Copyright Office had issued registration certificates five days before he filed the first complaint referencing his applications, according to an amended complaint filed in July.
Payne said he presumed Booker T’s claim to be true for the purposes of a motion to dismiss. He didn’t say whether Fourth Estate, which came down after Booker T filed the lawsuit in February, would apply if the registrations hadn’t come through in time, because he said Booker T’s claim that he had the registrations rendered the question moot.
Activision pointed to another Supreme Court decision, TC Heartland v. Kraft Foods Grp. Brands LLC, to argue that Booker T couldn’t sue in Texas, where he lives, rather than in California, where Activision is headquartered. It also noted Booker T lives in Houston, outside of the Eastern District. But courts have held that TC Heartland only applies only to patent cases in restricting venue to where a defendant’s business is incorporated business, Payne said.
Activision failed to show the Central District of California would be more convenient, Payne said. He found most relevant factors neutral, except that cases on average move more quickly from filing to trial in East Texas. Booker T was also aided by the wide dispersal of relevant evidence and witnesses across the nation, Payne noted.
Potts Law Firm LLP and Law Offices of Patrick Zummo represent Booker T. Durie Tangri, LLP and Gillam & Smith LLP represent Activision.
The case is Huffman v. Activision Publishing et al., E.D. Tex., No. 19-50, Report and Recommendation 11/27/19