Huffman v. Activision Publishing

Case: 22-40067 Document: 00516429244 Page: 1 Date Filed: 08/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 11, 2022
No. 22-40067
Summary Calendar Lyle W. Cayce
Clerk
Booker T. Huffman,
Plaintiff—Appellant,
versus
Activision Publishing, Incorporated; Activision
Blizzard, Incorporated; Major League Gaming
Corporation; Treyarch Corporation,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 2:19-CV-50
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Booker T. Huffman (“Booker T”) sued
Defendants-Appellees (collectively, “Activision”) for copyright
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-40067 Document: 00516429244 Page: 2 Date Filed: 08/11/2022
No. 22-40067
infringement under 17 U.S.C. § 501 and violation of the Digital Millennium
Copyright Act, 17 U.S.C. § 1202. The jury returned a verdict of no
infringement, and the district court entered an order dismissing the case.
Booker T appealed. We AFFIRM.
I. Background
Booker T is a professional wrestler who sometimes uses the in-ring
persona, “G.I. Bro.” In 2015, Booker T teamed up with Travis Huffman to
create cartoon versions of G.I. Bro and comic books based on the character
(collectively, the “G.I. Bro works”). Booker T registered the comic books
and illustrations with the United States Copyright Office. He also promoted
his character and the comic books by appearing at comic book events dressed
as G.I. Bro.
Activision published a series of multiplayer, first-person shooter
videogames titled, “Call of Duty.” One of the games, Call of Duty: Black Ops
III included a character named David “Prophet” Wilkes, who had replaced
ninety percent of his body with cybernetics to enhance his fighting ability. In
2018, Activision released a prequel to Black Ops III called Call of Duty: Black
Ops IV, which depicted Prophet as he was before he remade himself. This
depiction of Prophet and the cartoon image of G.I. Bro both have a muscular
build, similar skin tone and facial expression, dreadlocks worn under a black
skull cap, military style clothing including ammunition holders strapped to
their bodies, and assault rifles held in a similar fashion.
Booker T brought an action for copyright infringement against
Appellees alleging that Prophet was a copy of one of his G.I. Bro works—a
G.I. Bro poster. Before trial, Activision moved in limine to exclude, inter alia,
evidence of alleged other instances of copyright infringement by Activision.
This included evidence regarding any alleged resemblance between (1) the
character Battery from Black Ops IV and Charlize Theron and/or her
character Furiosa in Mad Max: Fury Road and (2) the character Torque in
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Black Ops IV and Kristofer Hivju and/or his character Tormund Giantsbane
in Game of Thrones (collectively, the “Battery and Torque exhibits”).
Huffman agreed to seek leave from the court before introducing these
exhibits.
At trial, after Activision’s witness, Dan Bunting, testified as to the
development of the Prophet character, Booker T’s counsel approached he
bench seeking to introduce evidence of other copying, ostensibly to test the
credibility of Bunting’s statement that the company uses a “rigorous process
. . . to ensure there’s no improper use of any kind of outside reference.” The
district court ruled that the evidence would not be admitted.
On the following day, after Activision completed its trial presentation,
but before the parties rested, Booker T’s counsel stated that he had “exhibits
we would like to offer as an offer of proof into the [c]ourt’s record[,]”
including the Battery and Torque exhibits. Activision objected to the
documents on the grounds that Booker T had not offered the exhibits during
the earlier bench conference that followed Bunting’s testimony, the
magistrate judge heard and rejected the same arguments at the pre-trial
conference, the documents were counsel-created, and allowing the exhibits
to come in would violate Federal Rule of Evidence 404. The district court
stated that “balancing the relevancy and probative value against the prejudice
and delay . . . it was a very easy call” not to admit the exhibits. The district
court permitted Booker T to file the exhibits on the docket as an offer of
proof, and he did so after the trial had concluded.
The jury returned a verdict in favor of Activision, concluding it did
not infringe Huffman’s copyright in the G.I. Bro poster. Huffman appealed.
The issue on appeal is whether the district court abused its discretion by
excluding the Battery and Torque exhibits.
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II. Standard of Review
“We review a district court’s evidentiary rulings for an abuse of
discretion.” United States v. George, 201 F.3d 370, 372 (5th Cir. 2000). “A
trial court abuses its discretion when its ruling is based on an erroneous view
of the law or a clearly erroneous assessment of the evidence.” Bocanegra v.
Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003). “If we find an abuse of
discretion in admitting or excluding evidence, we next review the error under
the harmless error doctrine, affirming the judgment, unless the ruling
affected substantial rights of the complaining party.” Id. “[W]e ‘may not
disturb the district court’s exclusion of the evidence . . . if that ruling can be
upheld on other grounds, regardless of whether the court relied on those
grounds.’” Viazis v. Am. Ass’n of Orthodontists, 314 F.3d 758, 767 (5th Cir.
2002).
III. Discussion
Booker T argues that the district court abused its discretion when it
excluded the Battery and Torque exhibits because it did not properly weigh
their probative value against the alleged danger of unfair prejudice or undue
delay. Activision counters that the Battery and Torque exhibits are character
evidence barred by Rule 404 and that even if they were relevant for a purpose
not forbidden by Rule 404, their probative value was substantially
outweighed by their prejudice. We agree with Activision.
Federal Rule of Evidence 404 prohibits the introduction of character
evidence or other bad acts “to show that on a particular occasion the person
acted in accordance with the character.” Fed. R. Evid. 404(a)(1), (b)(1).
Federal Rule of Evidence 403 provides that “[t]he court may exclude
relevant evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
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Booker T contends that he sought to introduce the Battery and
Torque exhibits to rebut and impeach Bunting’s testimony that Activision
acted in accordance with the rigorous process he described, “not to prove
that it infringed [Booker T’s] copyright because of a character trait.” But we
have explained that “[e]ven where the evidence serves some conceivable
non-character purpose such as impeachment, we still must carefully consider
whether the introducing party was actually ‘attempting to convince the jury
that [the defendant] was a bad man’ who acted in conformity with his bad
character in the case at hand.” In re DePuy Orthopaedics, Inc., Pinnacle Hip
Implant Prod. Liab. Litig., 888 F.3d 753, 785 (5th Cir. 2018). “If yes, the
unduly prejudicial effect of such an argument will very likely substantially
outweigh its probative value.” Id.Here, Booker T’s assertions before the district court and on appeal
demonstrate that by attempting to introduce the exhibits purportedly
evidencing other instances of copying, he intended to show that Activision
acted in conformity with its bad character in the instant case. First, during
Booker T’s offer of proof, counsel stated in reference to the previous day’s
bench conference, “I approached the bench to talk about other instances of
infringement.” 1 Similarly, in his post-trial opposition to Activision’s motion
for attorney’s fees, Booker T stated, “the evidence, which did not get
admitted at trial, shows that Defendants’ use of the works and images of
others is quite vast.” On appeal, Booker T reasons that because the Battery
and Torque exhibits show that Activision’s creation of two other characters
involved the improper use of “outside references,” the exhibits could have
1
Now, on appeal, Booker T contends that Activision’s creation of Battery and
Torque were not “other acts” within the meaning of Rule 404 because they were in the
same game as Prophet and were thus subject to the same Activision process. But Booker T
cannot have it both ways. That is, he cannot refer to the creation of Battery and Torque as
“other instances of infringement” while claiming that these were not “other acts.”
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rebutted and impeached Bunting’s testimony in two ways: the jury could
have concluded (1) “that Activision’s process did not work as Bunting said it
did” and (2) “that Activision and Bunting did not follow the procedure he
described.” It follows from these arguments that Booker T wanted the jury
to doubt Bunting’s testimony and to conclude, based on Activision’s alleged
copying, that it had failed to abide by its rigorous process in the past, and thus
had similarly failed in this case. This is improper character evidence under
Rule 404.
Moreover, even if the exhibits concerning Activision’s development
of other characters were relevant to the question of whether it copied the G.I.
Bro poster to create Prophet’s image, the district court was still within its
discretion to exclude the Battery and Torque exhibits based on the dangers
of unfair prejudice and undue delay. The exhibits were highly prejudicial
because they served to compel the jury to infer that if Activision copied with
respect to Battery and Torque, it must have similarly copied to create
Prophet. This prejudicial effect is compounded by Booker T’s lack of proof
that the creation of Battery and Torque involved improper copying. See Fed.
R. Evid. 104(b) (“When the relevance of evidence depends on whether a
fact exists, proof must be introduced sufficient to support a finding that the
fact does exist.”).
Regarding undue delay, the district court reasoned that admitting the
exhibits “would have resulted in a series of mini trials.” As Activision points
out, had the Battery and Torque exhibits been admitted, it likely would have
had to present evidence and testimony to refute Booker T’s assertion that
those exhibits represented other instances of copying—evidence such as an
explanation of the casting for the model on whom Torque was based,
testimony by that model, or expert testimony explaining the archetypes
Torque was based on. In light of the minimal relevance and probative value
of the Battery and Torque exhibits, we agree with the district court’s
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assessment that the scale tipped toward unfair prejudice and undue delay.
We cannot say that this determination was based on an erroneous view of the
law or a clearly erroneous assessment of the evidence. See Bocanegra, 320
F.3d at 584. Accordingly, we hold that the district court did not abuse its
discretion in excluding the Battery and Torque exhibits. 2
IV. Conclusion
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
2
Because we conclude that there was no abuse of discretion, we need not reach
Booker T’s argument that the exclusion of the Battery and Torque exhibits affected his
substantial rights.
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