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Activision Still Heading towards Texas Trial in Huffman Case
In February 2019, former WWE wrestler, Booker T. Huffman sued Activision and Major League Gaming, alleging that the defendants copied one of his ring-name personas, “G.I. Bro,” to create the character “Prophet” in Call of Duty: Black Ops 4. Huffman v. Activision Publishing, Inc., Activision Blizzard, Inc., and Major League Gaming Corp., 2019 WL 577529 (E.D.Tex.).
Last year, we wrote about this case a couple of times — once, when Activision won a motion to compel discovery in May 2020, and again, in our year-in-review post, where we observed: “Huffman survived Activision’s attempts this year to dismiss the case because the district court failed to apply a fundamental rule of copyright law: i.e., that copying is only legally actionable if the defendant took original constituent elements from the plaintiff’s work.” For more detail on this case, and another, similar look-a-like case, check out this excellent analysis at Copyright Lately. And, as an easy, visual recap, this silly case is solely about a claim that Huffman made a comic book image of himself (pictured below, left) and that Activision made a single image (below right) that allegedly copied it and used that in marketing materials for a CoD title.
THE DISTRICT COURT’S MAY 26, 2021 MSJ ORDER
On May 26, 2021, the Texas district court (Judge Schroeder) finally ruled on three motions for summary judgment filed by the Activision defendants seeking rulings of:
no standing and no copyright infringement; (denied)
no violation of 17 U.S.C. § 1202; (granted in part, denied in part) and
lack of nexus. (denied)
More specifically, the court was reviewing, de novo, a magistrate judge’s 30+ page report and recommendation on the motions issued back in December. After considering Activision’s four main objections to it, the court adopted the magistrate’s report entirely, making all the same mistakes as the magistrate, anew.
1. “ONE LOOK”
First, on the standing question, Activision had argued that Huffman already transferred copyright ownership of the G.I. Bro character to WWE as part of his contract with WWE. (You know, the standard kind of contract you’d expect someone to sign when they become a pro wrestler and adopt a persona, like, “Hulk Hogan,” “The Undertaker,” or, in this case, “G.I. Bro.”) Activision argued that the magistrate judge erred in deferring interpretation of this contract language to the jury, contending that the contract language wasn’t ambiguous. Huffman, for his part, argued that his G.I. Bro wrestling persona is distinct from his G.I. Bro comic book character, and therefore wasn’t covered by the agreement’s definition of IP:
4. INTELLECTUAL PROPERTY:
(a) All service marks, trademarks and other distinctive and identifying indicia used by Contractor prior to the Effective Date in connection with the business of professional wrestling, including but not limited to Contractor’s legal name, nickname, ring name, likeness, personality, character, caricatures, signature, costumes, props, gimmicks, gestures, routines and themes, which are owned by Contractor or in which Contractor has any rights anywhere in the world (collectively, the “Contractor Intellectual Property”)
(Emphasis added by the magistrate judge.)
As soon as I read this back in December, I immediately thought of Will Ferrell’s fashionista “Mugatu” character in Zoolander shouting the obvious to an audience at a fashion show that Ben Stiller’s character, Derek Zoolander, only has “one look.” Mugatu screams about Zoolander only being able to produce one modeling look: “Blue Steel, Ferrari, La Tigra?! They’re the same face! Doesn’t anyone notice this? I feel like I’m taking crazy pills!“ Huffman’s argument is equally ridiculous because the G.I. Bro comic book persona looks exactly the same as the G.I. Bro wrestling persona. It’s the exact same guy doing the exact same look! The court, however, seems to have taken the same crazy pills as the magistrate judge and agreed that the “contract is ambiguous” and that the jury should decide what it meant.
2. ACCESS AND SIMILARITY
Second, Activision argued that the magistrate judge erred in finding a genuine dispute of fact as to access. Here, the district court simply affirmed the magistrate’s finding that there was a dispute of fact as to whether the poster was copied and a fact dispute as to “access to the [poster] and, in the alternative, a fact dispute as to whether the two posters were strikingly similar.”
Here, I can actually understand the court’s stated view on the first point that access was disputed and that the plaintiff’s claim that the poster was displayed at Comic Con could have been a basis for it being seen by employees of Activision. However, on the issue of similarity, the district court then egregiously redoubles the magistrate’s error of misunderstanding a fundamental precept of copyright law, by simply saying that the posters might be similar without addressing originality; i.e., that copying is only legally actionable if the defendant took original constituent elements from the plaintiff’s work. This is clear error.
3. 17 U.S.C. § 1202
Third, on the claim that Activision improperly removed copyright management information (CMI) from Huffman’s G.I. Bro image, the magistrate had held that “liability for section 1202(a) could exist merely by affixing CMI to a defendants’ own work.” It acknowledged that while Huffman hadn’t “provided enough evidence to support his section 1202(b) claim,” i.e., that Activision had removed CMI from plaintiff’s work, it found that Activision’s distribution of the look-a-like image with Activision’s CMI in or around the image could be viewed by a jury as the act of Activision adding CMI to an image owned by the plaintiff. Activision made some good arguments about the statutory language, but the court dismissed them.
4. LACK OF NEXUS
Fourth, Activision argued that the magistrate judge erred in finding a nexus between all sales of Black Ops 4 and the single, little used marketing image alleged to be infringing. The district court rejected this argument also, noting that despite Activision’s claim that the magistrate ignored the cases Activision cited in its brief about the “nexus” requirement, Activision did acknowledge in a footnote that the magistrate at least addressed the cases despite not engaging with the “substance of the cases.” The court disagreed and found that the magistrate judge “addressed and correctly distinguished Defendants’ cited caselaw.” Of course, the court engaged in no analysis of its own and again provided only this perfunctory rubber stamp.
This ruling affirming the magistrate’s report doesn’t come as a surprise and means that the trial must go on as scheduled. A ridiculous waste of time and resources for what’s clearly an erroneous decision.