While we have not addressed this in some time, the Booker T lawsuit against Activision for the use of a video game character similar to his “GI Bro” creation continues in a federal court in Texas. Recently, the court denied summary judgment by the video game maker.
You may recall that Huffman, the former pro wrestler Booker T, filed a lawsuit against video game maker Activision for the alleged use of his character GI Bro in the Call of Duty franchise Black Ops. He claims copyright infringement for the use of a character that looks similar to his character.
In most cases, these type of copyright infringement lawsuits go nowhere. However, the federal court in Texas has denied Activision’s motion for summary judgment to dismiss the wrestler’s claims.
The court found an issue of fact regarding ‘Nostalgia Agreements’ signed by the former WWE superstar with World Wrestling Entertainment.
The federal magistrate in the case determined in their report and recommendations that the court deny summary judgment. The magistrate differs from the judge in federal court as the magistrate serves as sort of a referee in discovery disputes and handles pre-trial issues such as this. They generate a report and recommend to the judge what to do. In most instances, the judge adopts the recommendation.
Here, the magistrate determined that Activision’s motion that Huffman had no standing because he signed away his copyright rights under a contract with the WWE and that he cannot provide evidence establishing a genuine dispute of fact regarding copyright infringement.
Report and Recomendations by MMA Payout
As a former professional wrestler with the WWE, Huffman signed two Contractor Nostalgia Agreements allowing the assignment of his rights. Activision argued that “WWE owns all rights, including all copyrights” to the GI Bro character. Therefore, Huffman could not sue Activision for rights he had assigned away.
The Court held that the Nostalgia Agreements were limited to intellectual property “in connection with the business of professional wrestling.” Huffman argued that the ‘“G.I. Bro” wrestling persona is distinguishable from the “G.I. Bro” comic book character and the Asserted Copyright at issue.’ The Court agreed with this rationale and determined that there was a genuine issue of material fact as to the interpretation of the NAs that precludes summary judgment.”
The Court seems to accept Activision’s argument but believes it fails on the issue that it does not explain how a special forces comic book character is at all connected to the business of professional wrestling.
Next, Activision argued that they never saw the makeup of GI Bro created and owned by Huffman. Thus, it was mere coincidence that the two images look alike. Huffman argued that he dressed up as the GI Bro character at comic book conventions and a poster featuring the character was displayed at trade shows including ‘various ‘Comic Con’ events.’ Deposition testimony stated that Activision representatives attended ‘Comic Con’ events in the same time period which would seemingly negate Defendant’s assertion that they never saw the GI Bro character. Or, at least, an issue of fact for trial.
The Court indicated that a jury should determine whether Activision created the GI Bro character independent of Huffman. It noted, that side-by-side comparisons of a poster of the two character “clearly share similarities and potentially even have striking similarities.”
Payout Perspective:
Its interesting to note that Booker T is reprising his role as GI Bro in a Bad Bunny song, named ‘Booker T.’ The question of comic book character and pro wrestling character gets skewed as the character was recently on a WWE programming.
Activision objected to the Report and Recommendations of the Court but it would be nearly impossible for the Court to side with Activision here. The case rests upon the issue of fact of the Assignment of Rights Booker T allowed the WWE to use his name, image and likeness of the GI Bro character. The big difference the Court highlights is that the WWE’s contract was limited to the use of the character with respect to pro wrestling and not through the use of a comic book character. The question does remain as to how Booker T used the GI Bro character and whether or not he used the underlying wrestling tie-in as a way to market GI Bro. At this stage on summary judgment, Activision loses but Huffman must still prove his claim of copyright infringement and show damages.
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