Video game uses same model as movie, gets sued for copyright infringement. HAUGEN v. ACTIVISION

A copyright is a set of exclusive rights granted to someone that creates an original work of authorship. Copyright grants an author the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.

Well developed and recognizable characters are the life blood of a successful story. It is possible for the characters of a story to be granted copyright protection in the United States, if certain conditions are met. The text of United States Copyright Law does not explicitly mention characters as subject matter that is protected, so any copyright protection granted to characters in copyrighted works would have to be created by a court’s interpretation of what copyright law may implicitly protect.

Court precedent varies between the different appeals circuits however a consistent rule is, to be eligible for copyright protection a character must be part of a copyrightable work and the character must be fictional. Assuming that a character is fictional and is part of a work which can be protected by copyright, the question then becomes whether the character itself can be protected by copyright. Courts use two basic tests to see if a character is eligible for copyright protection.

A well delineated character – will be granted copyright protection. Under this approach, a three-step test is required to be followed. Firstly, the character must possess physical and conceptual attributes. Secondly, the character must be “sufficiently delineated” to be identified as the same character across multiple occasions. He must therefore show consistent traits. Lastly, the character must be “especially distinctive” and “contain some unique elements of expression. The consistency of a character’s traits and attributes is considered as the key factor for whether the character qualifies for copyright protection.

A character that is the story – will be granted copyright protection. Under this approach the court reviews how central the character is to the story. To be granted copyright protection the character must actually constitute the story being told and not simply be a vehicle for telling the story.

But frequently the courts will apply both rules when they are determining whether or not a fictional character is worthy of copyright protection.

CLAYTON HAUGEN, V. ACTIVISION PUBLISHING, INC., 2:21-cv-00035 (E.D.TX 2021) is a case which will turn on whether the Plaintiff has created a character which is eligible for copyright protection.

Plaintiff in this case wrote two books titled November Renaissance, a story set in the near future. The central character in November Renaissance is Cade Janus, a female vigilante and pariah figure. Plaintiff wanted to transform his books into movies and had promotional pictures taken using a female model to represent Cade Janus.

Defendants produce and market the Call of Duty series of video games. One of the characters in Defendant’s video game Call of Duty: Modern Warfare is named Mara. Defendant used the same female model to represent Mara, as Plaintiff used to represent Cade Janus.

Plaintiff believes that his copyright to the Cade Janus character was infringed when Defendant created Mara. Plaintiff claims that Defendant found and used a Cade Janus photograph to depict Mara in an early promotional collage for Call of Duty. The use of the Cade Janus photograph along with the female model that depicted Cade Janus is clear evidence of infringement on the Cade Janus character according to the Plaintiff.

This will be an interesting case to watch because the Plaintiff’s claim revolves around a character described in text infringed by a character presented visually While Plaintiff did have photographs taken of a model, the character he created is expressed in a book. The question then becomes do Cade Janus and Mara share any traits other than the model used to depict the characters? If the primary similarity between the two characters is the brunette female model that depicted them in a few promotional photos, the Plaintiff will have a hard time proving the Mara character infringes on Cade Janus. On top of this, Plaintiff’s case seems to ignore the model’s right to publicity. The model no doubt gave Plaintiff permission to use her likeness, but it is unlikely she signed away her right to take on new modeling jobs with similar themes.

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