Former pro wrestler Booker T survives Motion to Dismiss in “Call of Duty” copyright lawsuit

Former WWE wrestler Booker T. Huffman survived a major hurdle in his lawsuit against Activision and Major League Gaming as a federal court in Texas denied the gaming company’s Motion to Dismiss is claims of copyright infringement.

Booker T filed a lawsuit for the alleged use of his copyrighted, in-ring persona GI Bro as well as comic books based on the character.  These were registered with the United States Copyright Office.  Defendants “Call of Duty” video game series feature a character similar to the GI Bro persona. 

Defendants filed a Motion to Dismiss in this lawsuit.  In order to show copying, Huffman must prove 1) proof that the defendant had access to the copyrighted work prior to creation of the infringing work and 2) probative similarity.  If “access” cannot be shown, the plaintiff may prove factual copying by “showing such a ‘striking similarity’ between the two works that the similarity could only explained by actual copying.

According to the Magistrate Judge’s Report, it found Huffman had a valid copyright and that he pleaded a claim for copying.  As noted by the Court, “striking similarity” is typically left for the fact finder.  The Court did compare the images of the two works and determined that a reasonable juror could find the two similar.  The Court noted that the work demonstrates that the characters share several similarities.  They also noted that the works were similar in “total concept and feel.” 

The Court did not determine that the depictions were similar, just that Huffman met his threshold in pleading his copyright claim. 

Notably, the Texas court where the lawsuit was filed is a “plaintiff-friendly” court when it comes to IP lawsuits.  While the court did not conclude infringement, the lawsuit is allowed to move forward with discovery. 

The order is a small victory for Booker T in this lawsuit.  There have been similar lawsuits with respect to similar depictions in video games.  Namely, Lindsay Lohan’s failed lawsuit against Grand Theft Auto over a character that she claimed was patterned after her.  However, that lawsuit was premised upon the right to privacy law in New York and not copyright.  Here, Huffman has more of a substantive claim considering he filed a copyright for the character, used the character in comic books and in pro wrestling and was able to persuade the court that the visual of him and the character are strikingly similar when held side by side.