WWE Wrestler Loses Bout with Video Game Company in Copyright Trial

By Hannah Shankman, GW Law, 3L

In June of 2021, a federal jury in Texas found that Activision Blizzard Inc., a popular video game developer and publisher, had not infringed the copyrighted persona of retired WWE wrestler Booker T. Huffman. Booker T. alleged that Activision copied one of his personas, “G.I. Bro,” in Call of Duty: Black Ops 4. Citing to similarities between his military-themed character and the Call of Duty character David “Prophet” Wilkes, Booker T. sued the video game company for copyright infringement and sought an award of profits from the sale of the game.  After a four-day trial, the jury sided with Activision and found no instances of wrongdoing. 

Booker T. Huffman donned the G.I. Bro persona at various points in his professional wrestling career. In 2015, Booker T. took the G.I. Bro character beyond the ring and developed a comic book starring a cartoon version of G.I. Bro. Drawn by freelance comic book artist Erwin Arroza, the G.I. Bro cartoon was depicted as a muscular character sporting military garb and dreadlocks. 

Booker T. subsequently registered the comic book and four drawings of the G.I. Bro character with the United States Copyright Office. It was through the rights and privileges associated with these works that Booker T. brought his case against Activision. He alleged that Activision’s posters and marketing materials for Black Ops 4 that displayed the image of Prophet infringed upon his G.I. Bro copyright.

In the marketing materials at issue, Prophet is pictured as a muscular military-style male character with dreadlocks. Yet, Prophet was first introduced to the gaming series in Call of Duty: Black Ops III as a specialist fighter that replaced 90% of his body with robotic technology to improve his fighting ability. However, Activision released Black Ops 4 as a prequel to Black Ops III. Therefore, the newer game depicts Prophet before his robotic upgrades. The similarities between the prequel version of Prophet and G.I. Bro prompted Booker T.’s legal team to argue that Activision ripped-off G.I. Bro in designing this iteration of Prophet.

Activision denied the infringement claims and tried to avoid Booker T.’s request for a jury trial altogether. Activision argued that Booker T. did not have a right to a jury trial because he was only after profits from the sale of the video game. Due to this request for equitable relief, Activision claimed this case should only be tried before a judge. The United States District Court for the Eastern District of Texas disagreed, stating that copyright owners have a right to jury trial irrespective of the type of relief requested. The case was then set for June 2021 before a jury. 

At trial, Activision maintained that it independently created the Prophet character. It argued that it did not copy the G.I. Bro image, nor create an image substantially similar to G.I. Bro—two elements Booker T. was required to prove to successfully claim copyright infringement. Further, Activision argued Booker T. did not provide sufficient evidence to support the claim for copyright infringement. In Activision’s motion for judgment as a matter of law, Activision alleged that it never had access to the G.I. Bro drawings, and that the G.I. Bro drawings were not copyrightable because they were simply a generic copy of a muscular male figure from the face down.

Ultimately, the jurors were not convinced that Activision infringed upon Booker T.’s copyright despite certain similarities between the two characters. After the announcement of the verdict, counsel for Activision emphasized Activision’s belief in integrity throughout the creative process and stated that the company was “pleased with outcome” of the case.

While the jury ultimately sided with Activision, it is not the only celebrity to go after game publishers and their alleged ‘copyright’ infringement actions. Philadelphia Eagles football player Lenwood Hamilton sued the Gears of War creators over claims that Cole Train was based on him. Selena Gomez launched a $10 million lawsuit against a mobile game for using her likeness. And Lindsay Lohan tried to sue Take-Two Interactive in 2014 for copyright infringement. No matter the case, more of these matters will continue to flow in as games grow in popularity and our personal brands take on a life of their own.

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