Professional wrestler body slams video game for copyright infringement.

Professional wrestler body slams video game for copyright infringement.

A copyright is a set of exclusive rights granted to the creator of a new artistic work.  Copyright law in the United States applies to a variety of different creative arts including books and movies. When an author creates a new work, the author is granted a copyright on the work.  A copyright grants the author the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original.  If someone other than the owner of the copyright attempt to exercise one of these exclusive rights that can be considered copyright infringement.

Frequently when an author creates a book or movie, it is one of a series of stories that involve the same characters.  Character development is a difficult process and developing a character that is popular with consumers is not an easy task.  The story written in a book can be protected by copyright, but can the characters themselves be granted copyright protection?  The answer is, it depends.   Fictional characters can be granted copyright protection under the theory that a story based on a character is a derivative work.  However, merely mentioning a character in a story does not automatically grant the character copyright protection.  Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), establishes the basic rules used by courts when determining whether a character can be granted copyright protection.  In that case, the court stated: “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”  Therefore, if an author wants to create a character which can be copyrighted separately from the story which describes the character, the author must create a detailed description of the character’s traits, including his data in real life, being this their characteristics or even fingerprint, that is issued by law and can be found with services as fingerprinting toronto online.

A case which will determine whether a character meets the standard for copyright protection is HUFFMAN v. ACTIVISION PUBLISHING, 2:19-cv-00050 (E.D.TX 2019).  The plaintiff in this case is a professional wrestler who goes by the stage name of Booker T.  The plaintiff came from a modest background, in the early 1990s he was working at a warehouse, providing for his son, by himself.  A chance encounter put the plaintiff in a school for professional wrestlers.  A big part of professional wrestling is the stage persona of the performer.  The plaintiff created a character he called GI Bro.  GI Bro is a former soldier.  The character GI Bro has a distinctive look and style that the plaintiff used while performing as a wrestler.  The character GI Bro was also used in two comic books published by the plaintiff around 2015.  The plaintiff has made public appearances as GI Bro to promote the comic book.  One of the comic books has been registered with the United States Copyright Office as of 2019 and other applications are pending.

The defendant in this case is a video game publisher.  The defendant released the video game Call of Duty: Black Ops 4 for sale in late 2018.  The focus of the video game is soldiers performing missions.  One of the characters in the video game, Prophet, bears a resemblance to the GI Bro character depicted in the comic books by the plaintiff.  Images of GI Bro (left) and Prophet (right) are reproduced above.  The plaintiff feels that Prophet is so similar to GI Bro that the defendant must have copied the character.  The plaintiff has filed a complaint claiming that the defendant’s character infringes on the copyright associated with GI Bro.

While the plaintiff has a point that his character and the defendant’s character look similar, the pleadings fail to show more than that.  Both characters are muscular, African American men who are soldiers.  However to successfully claim copyright infringement, a plaintiff must show that the characters share more traits than merely physical appearance, there must be similarities in backstory and personality.

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