Wrestler Booker T Sues Activision For Copyright Infringement Over Fairly Generic Character Depiction

from the no-bro dept

It's old hat by now to point out that on matters of copyright far too many people are unaware of the nuances of the law as to what constitutes infringement and what doesn't. While this is generally true, it's all the more so when it comes to how copyright covers specific characters or settings. For instance, George Lucas may have a copyright claim on the specific character of Darth Vader, but he most certainly does not have any claim to the more generic black-armored space-magician with a laser sword and a bad attitude. Copyright covers expression, in other words, not mere ideas.

Which brings us to ex-WWE wrestler Booker T and his lawsuit against Activision over a G.I. Bro character he created and a character in Black Ops 4.

Booker T. Huffman has filed a lawsuit against video game publisher Activision for allegedly stealing his “G.I Bro” character in the Call Of Duty: Black Ops 4 video game.

Huffman filed a lawsuit today against Activision Publishing, Inc, Activision Blizzard, Inc., and Major League Gaming Corp.

The lawsuit alleges that Booker T’s character G.I Bro was copied by the Black Ops character David “Prophet” Wilkes. Booker T used the G.I Bro character in the 90s as a professional wrestler, and also created a comic book based on the character in 2015.

You can read the entire filing below, but I will tell you right up front that this isn't a strong case. Booker T is asserting copyright infringement over a character that does not share a name with his, does not share a backstory with his, and does not exist in the same setting as his. Instead, it appears the only thing the two characters do share is that both are African American gunslingers in combat gear with long hair. Seriously, that's about it. The filing itself uses these side by side images to demonstrate the "blatant copying" that has occurred.

If you think there is any kind of unique identifier in Activision's image on the right that somehow makes it a clear copy of Booker T's character, you're a crazy person. Again, to put it bluntly, it's just an African American guy with long hair in combat gear. Complicating Booker T's suit further, this is an established character in the Black Ops ethos, with this supposedly infringing depiction being simply some imagery around when Prophet was younger. The character is Prophet, full stop. It's not G.I. Bro at all and nobody is going to think otherwise, except apparently for Booker T and whatever lawyers he convinced to file this lawsuit.

And none of that even touches Booker T's own character's name, a clear homage and reference to G.I. Joe. One wonders if Hasbro wants to get involved at this point, given the stink that's being made over intellectual property rights.

Filed Under: black ops 4, booker t, characters, copyright, g.i. bro, video games
Companies: activision

Activision Considering An Opposition To Trademark For Dog-Curbing Company 'Call Of Doodee'

from the shit-for-names dept

There's a line in Ian Fleming's opus Goldfinger that goes: "Once is an accident. Twice is a coincidence. Three times is an enemy action." It appears that as far as strange trademark attacks issued from entertainment properties upon canine-related services are concerned, we've officially reached the coincidence stage. You will recall that we were just discussing an odd trademark opposition filed from RZA of the Wu-Tang Clan against a dog-walking service calling itself Woof-Tang Clan. On the heels of that, we learn that Activision is mulling an opposition on a trademark application for a dog-poop removal service calling itself Call of DooDee.

Enter Call of DooDee, the clever name for a dog poop cleaning service that's not too hard to differentiate where they received their inspiration. The subject matter of the business itself in relation to the franchise is something that we're not even going to touch. Activision may not find the situation humorous, but you can bet we got a chuckle out of it. Someone who is not laughing however, is the Illinois business owner that filed the initial trademark.

While the application was filed with the USPTO in June, Activision recently asked for extended time to consider filing an opposition. While I would very much enjoy reading about intellectual property lawyers entering into long-form and serious legal discussions during which they would be forced to say the word "doodee" repeatedly, it should be immediately obvious to anyone involved that no opposition is warranted here.

While the name of the business is a clear homage to the phrase "call of duty", it's far less clear whether that homage has anything to do with the famous video game franchise. The phrase has military origins, to which the game franchise itself is a titular homage. Beyond that, there is no other tie between a dog-curbing service and the video game franchise. They operate in different industries and, frankly, on different planes of existence. One business is digital, while the other is material and fecal. While some haters of the franchise might indeed claim that it is very, very shitty, this is neither the sort of market tie that is material in trademark law, nor do I suspect that it is the sort of evidence for public confusion that Activision's lawyers would want present in its opposition.

I would hope that any plans for an opposition being filed would make its way into Activision's wastebin. Perhaps to sit alongside several knotted little blue baggies.

Filed Under: call of duty, trademark
Companies: activision, call of doodee

Call Of Duty Again Sued Over Another Historical Figure... Who Is A Good Guy In The Game

from the call-of-litigation dept

You may recall that Activision's Call of Duty games have already been the subject of a lawsuit by a historical figure. Previously, notorious figure Manuel Noriega brought a publicity rights case against the game company in the United States, claiming that the game depicted him without his permission. Pretty much everyone agreed that Activision was on solid First Amendment grounds in depicting a historical figure, including Rudy Giuliani, who galloped in to represent Activision and quickly got the case summarily dismissed.

You may have thought that would be the end of all that silliness, but you'd be wrong. Over in France, the family of an Angolan rebel also depicted in the CoD franchise is filing a defamation suit against Activision. Note that the defamation laws in France allow for a more liberal application than in the States, and that France doesn't have the same strict concept of Free Speech that we have here.

The family of Jonas Savimbi, an Angolan rebel fighter, says Call of Duty: Black Ops II portrays him negatively—specifically, as a “barbarian” and “a big halfwit who wants to kill everybody,” according to the family’s lawyer Carole Enfert. They’re seeking one million euro in damages from the French arm of the video game publisher. The Guardian reports that France has very strict anti-defamation laws, even in cases where the allegedly defamed individual is dead—so his family may have a case. Savimbi was killed by the Angolan government in 2002.

So there are a couple of wrinkles that make this case different than the Noriega suit. First, as noted, Savimbi is dead. Very dead. And, while he most certainly is a notable historical figure, he doesn't have Noriega's dastardly reputation. Instead, Savimbi is best known for pushing out Portuguese colonialism in Angola and subsequently leading the fight against the MPLA, which is generally considered to be a genocidal group that had aimed at taking power in the country. Included in his reputation, however, is a firm unwillingness to engage in offered peace talks, choosing instead to continue a bloody civil war from which his nation still hasn't recovered.

But it's the final difference that makes this case so baffling: Savimbi is portrayed as a "good guy" in the game. The player is actually tasked with fighting alongside him. See the video below for yourself, with Savimbi's appearance coming in around the six minute mark, and judge for yourself whether you think he's portrayed in a negative way (note: this is a violent video game and the footage below includes some of that violence).

None of which is to say that any of this should even matter. Savimbi is a long-dead historical figure and artistic endeavors ought to have full freedom to portray him in the context of his place in history. That's what the game attempts to do. That the family's suit misses the mark in characterizing his portrayal as outlandishly negative in the context of the rest of the game is telling as far as their motives are concerned, but should be ultimately besides the point.

After all, if free expression is to mean anything at all, certainly it must allow for the discussion and portrayal of historical figures.

Filed Under: call of duty, jonas savimbi, manuel noriega, publicity rights
Companies: activision

No Copyright Lives Forever: How The Apathy Of IP Rights Holders About Their Copyrights Killed A Game Re-Release

from the way-to-go dept

If you were gaming on a PC just after the turn of millennium, you likely fondly remember the classic game No One Lives Forever. A genre turning first-person shooter that featured a strong, reasonably dressed female hero and a setting inspired by 1960's spy films was received incredibly well by both critics and fans. And, because retro PC gaming continues to have a strong following, any of you that know what we're talking about here are probably thinking you'd like to fire up a copy of No One Lives Forever on your updated machine and give it another go. Well, you can't. You should be able to, but you can't. And you have a complicated web of copyright and trademark rights-holders to thank for it.

Even if you're a fan of retro-gaming, you may not be familiar with the company Night Dive Studios. Night Dive is the group that buys up the rights to older games, optimizes them for new machines, and then re-releases them on Steam and other outlets like GOG.com. They've done this with big-name titles in the past and they really wanted to do the same with No One Lives Forever and its sequel. And, because this is a reputable business we're talking about, they decided to secure the rights for the game first. And that's where it all went to hell.

Night Dive's detective work began with tracking down and speaking with the game's original developer and publishers. That meant getting in touch with the three main players: Warner Bros., Activision, and 20th Century Fox.

NOLF and its sequel were developed by Monolith, who are now owned by Warner Bros., under whom they released the acclaimed action game Shadow of Mordor just last year. NOLF was made using a framework called the LithTech engine, which is also now owned by Warner Bros. However, the first game was published by Fox Interactive, and there's a question of whether 20th Century Fox or even Activision might have partial rights to the series, due to Activision's 2008 merger with Vivendi, a separate media company that had acquired Fox Interactive in 2003.

Here's where this gets really depressing. Because the game was released in an age before digital document filing was in widespread use, the rights contracts and paperwork we're talking about here are all literally paperwork. And, after communicating with Activision, Fox, and Warner Bros., the response from all three was to essentially state, "We don't really know if we have any rights here, and we aren't going to look for the paperwork to make sure, but if you make the game and it turns out we do have those rights you'll be facing legal action from us." Keep in mind, this was the response from all three publishers who would take legal action concerning rights all three couldn't be bothered to determine if they even had. You can imagine how frustrating that must be when, like Night Dive's Larry Kuperman experienced, you just want to re-release a game and nobody can tell you who owns it. Take Kuperman's interaction with Activision, for instance, to get an idea of how absurd this all is.

"So we went back to Activision and, [after] numerous correspondence going back and forth, they replied that they thought they might have some rights, but that any records predated digital storage. So we're talking about a contract in a box someplace." Kuperman laughed. "The image I get is the end of Indiana Jones… somewhere in a box, maybe in the bowels of Activision, maybe it was shipped off to Iron Mountain or somewhere. And they confessed, they didn't have [their] hands on it. And they weren't sure that they even had any of those rights."

In a sane world, intellectual property rights that a company can't be bothered to find out if they even have shouldn't be rights that can then be sued over. Either they're important or they aren't, and if they're important they should be maintained.

The upshot of this is that Night Dive discovered that, surprisingly, nobody owned the trademark for the game, so they filed a claim to it. Months later, Kuperman found out that Warner Bros. had filed an opposition to get an extension on the time they could use to determine if they had a trademark claim to the name. Again, they didn't know if they had the rights, but they wanted to find out just to see if they could enforce legal action with them. The trademarks and other intellectual property would be used solely for legal action, as it quickly became clear that none of the companies involved had any interest in actually helping Night Dive re-release the game, even if they could have made money off of the arrangement.

We wanted Warner involved with this," Kuperman told me, "so we said, there's two ways we could work together. First, and our preference, is that we would do a licensed deal. We would pay them some amount of money up front to show that we're serious, and then we would give them a backend share of revenues. And if that didn't work for them, if they wanted to be the publisher of record, we'll still do the development and the optimization of the game, and instead of our giving them a backend share, [they] give us a backend share. In either case, it seemed to us that they were gonna be making money that they wouldn't have been making otherwise, with a minimum amount of effort. We weren't meeting with a lot of enthusiasm. In fact, most of the phone calls were like, 'That'll probably never happen.'"

Activision and Fox responded similarly, saying they weren't sure if they had any rights but not offering any kind of permission to move forward and retaining the option of legal action if Night Dive re-released the game. Keep in mind, please, that this frustrating nonsense is all the result of Night Dive attempting to do the right thing and license the game properly. And, for those efforts, they even got a legal threat from Warner Bros., because apparently nobody over at Warner bothers to talk between departments.

Then, in December of 2014, Kuperman and Kick heard from a lawyer representing Warner Bros. Kuperman explained: "Steve [got] what I like to call, the legal term for it is a 'Scary Letter.' It comes from an attorney representing Warner Bros. and basically says they're aware of our filing for trademark, that they had contested that, and that if we went forward, specifically with a new version of No One Lives Forever, without doing a new deal with them, we would be infringing their rights and the hammer would fall."

And that was after Night Dive had been desperately trying to do such a deal and meeting with nothing but questions over whether any of these rights Warner's lawyer mentioned even existed. Warner further followed up saying they were no longer interested either in working with Night Dive to publish the game or publish it themselves, meaning Warner Bros. has made the conscious decision to let No One Lives Forever die off for good. Night Dive says it has given up the attempt and gamers who wanted a legitimate way to get a beloved old game are forced down the roads publishers claim are evil.

The people at Night Dive have ceased their attempts to re-release No One Lives Forever. They now control the trademark, but without a game to use it on, they're going to let it lapse. No One Lives Forever will remain unavailable on digital stores, and modern gamers who want to play the games will have to either track down scarce physical copies or resort to illegally torrenting them.

Intellectual property: important enough to publishers that they'll use it to kill off the attempt to release an old game, but not important enough to know if they actually have the rights to begin with.

Filed Under: copyright, licenses, no one lives forever, old games, re-releases, retro gaming, video games
Companies: 20th century fox, activision, night dive studios, warner bros.

We Hardly Knew Ye: Judge Dismisses Manuel Noriega's Publicity Rights Suit Against Activision

from the dictate-this dept

Sometimes it's difficult to maintain any faith in our legal system, particularly when it comes to intellectual property, and perhaps even more particularly when it comes to publicity rights. Then, some former drug-running dictator comes along to sue a video game and the system actually manages to do right. Yes, the case brought by Manuel Noriega against Activision over the game's depiction of the dictator in the Call of Duty franchise has been tossed out by the judge.

"This was an absurd lawsuit from the very beginning and we're gratified that in the end, a notorious criminal didn't win," said Rudy Giuliani, the former mayor of New York, who had defended Activision in the case. "This is not just a win for the makers of Call of Duty, but is a victory for works of art across the entertainment and publishing industries throughout the world."

Nice of the mayor to rub it in, but he ain't wrong. In dismissing the case, the judge explicitly states that the First Amendment rights of Activision outweigh any publicity rights that may or may not be afforded to Noriega. It's an important distinction to make, since the judge likely could have simply dismissed the entire suit based on Noriega being a foreign national and not subject to the publicity rights law of California (under which he filed the claim). Instead, the dismissal brings free speech in to play, with a particular eye towards public persons.

"A brief summary of defendants' uncontroverted evidence conclusively shows that Noriega is a notorious public figure, perhaps one of the more notable historical figures of the 1980's...Noriega's opposing papers do not contest any of this."

The dismissal goes on to note that the depiction of Noriega in the game is clearly transformative, is not the sum total of the game's storyline, and that therefore economic considerations regarding the game being a commercial product don't factor in at all. Finally, it quotes another ruling quite beautifully, "public prominence does not confer a shield to ward off caricature, parody and satire." Bravo.

Filed Under: free speech, manuel noriega, publicity rights, rudy guiliani
Companies: activision

Former Mayor Giuliani To Defend Activision In Odd Noriega Publicity Rights Lawsuit

from the public-defense dept

We recently sneered at the publicity rights law suit brought against video game maker Activision by dictatorship-maker Manuel Noriega over his portrayal in the Call of Duty game series. The idea of a foreign historical/public figure filing suit against an American company for publicity rights, which tend to be quite localized to individual states, seemed silly on its face. Add to the mix the dastardly acts by the plaintiff and there was a great deal of room for eye-rolling at this fight.

Well, now a new combatant has emerged to defend Activision, and there's a small chance you'll recognize his face.
Is it...Derek Jeter?

No, it's former NYC Mayor Rudy Giuliani, who has decided to take up the sword for Activision and defend them in court against Noriega. It turns out that America's Mayor has since gone back to practicing law and he's asking for a dismissal of the case for the exact reasons I outlined in the previous post.

Giuiliani told The Associated Press he took the case because he doesn't want the imprisoned Noriega to profit from his crimes, which include convictions for murder, drug trafficking and money laundering. Also, Giuiliani said that if the lawsuit is upheld, it could give historical figures and their heirs veto power over their depiction in books, television, movies and video games.

The entire point here is that the First Amendment provides protection in fictional depictions of historical figures. That those depictions are so close in describing the criminal actions of Noriega, in this case as a kidnapper and murderer, doesn't relieve Activision of those protections. Opening the door to more suits by public and historical figures would be absolutely horrific for the areas of historical fiction, whether in games, novels or movies. Noreiga, by the way, is serving prison time for murder and corruption.

"Noriega going after 'Call of Duty,' you should think of it as Osama bin Laden's family going after 'Zero Dark Thirty,'" [Giuliani] said.

Hopefully the court will dismiss this nonsense quickly. On a related note, it's always nice to see a former politician come to the aid of new entertainment companies, video games in particular. Too often it's the other way around.

Filed Under: call of duty, manuel noriega, publicity rights, rudy giuliani
Companies: activision

Manuel Noriega Sues Activision From Jail Over Call Of Duty Depiction

from the dictating-the-content dept

You know, when it comes to publicity rights, that expansion of law that masturbates celebrity egos like no other, I can laugh it off when we hear from the likes of Lindsay Lohan, Katherine Heigl, and Dan Snyder. I mean, sure they're famous and rich, but they still probably deserve that famous Hitchhiker's Guide designation of "mostly harmless." That their attacks on anyone who dares make even the barest reference to their holy visages typically fail usually serves as enough mental closure in my mind to keep the dogs from barking in my head at night.

Manuel Noriega, on the other hand, is an entirely different animal and his lawsuit against Activision over his portrayal in a Call of Duty game just makes me angry.

Manuel Noriega, the former dictator of Panama, is suing Call of Duty's video games publisher. The ex-military ruler is seeking lost profits and damages after a character based on him featured in Activision's 2012 title Black Ops II. The 80-year-old is currently serving a jail sentence in Panama for crimes committed during his time in power, including the murder of critics.

So let's get this straight: an octogenarian former dictator of Panama, who has been tried and convicted in two separate countries and is currently residing in a prison in Panama, is suing a United States video game publisher over his depiction? Now can we all go ahead and admit publicity rights are ridiculous? And Noriega's suit is a special brand of silly, according to entertainment lawyer Jas Purewal.

"But Noriega isn't a US citizen or even a resident. This means that his legal claim becomes questionable, because it's unclear on what legal basis he can actually bring a case against Activision."

It's strange that we even have to ask the question, isn't it? The same status Noriega enjoys as a public and historical figure is being used to protect his depiction as a public and historical figure. If we allow publicity rights to dominate the public interest in commenting and portraying public figures, even for entertainment purposes, where is that going to end? That Noriega's age puts him perilously close to crossing the line of all of this being applied to the deceased is even more worrisome. Perhaps the families of long-dead historical devils will look to bury their lineage's history in publicity rights law if this sort of thing is allowed to go on unchecked.

Filed Under: black ops ii, call of duty, manuel noriega, panama, publicity rights
Companies: activision

Did The Record Labels Kill The Golden Goose In Music Video Games?

from the of-course-they-did... dept

For the last decade or so, every year the major record labels seem to bet on some single "magic bullet" to fix all that ails them. They go through phases. There was their own crappy DRM'd and locked-down music stores. There were ringtones. And... there were music video games like Guitar Hero and Rockband. And, of course, as soon as those games actually started helping the recording industry, the industry decided to suck them dry. Edgar Bronfman kicked it off by declaring angrily that those games had to pay much more to license the music -- even though the music in those games tended to lead to much greater sales of albums for those artists.

And now it looks like the labels may have succeeded in bleeding those types of games dry. With Activision announcing that it was dumping Guitar Hero, one of the major reasons given is the high cost of licensing music. Yup, the labels priced things so high that they made it impractical to actually offer any more. Yet another case of the labels overvaluing their own content. Now, it's also true that these games haven't evolved that much, and people haven't seen the point of buying new versions, but part of that lack of evolving is because so much of the budget had to go towards overpaying for music, rather than innovating.

Filed Under: guitar hero, music, video games
Companies: activision

The Companies Who Support Censoring The Internet

from the censorship-is-good-for-business dept

A group of companies sent a letter to to Attorney General Eric Holder and ICE boss John Morton today (with cc's to VP Joe Biden, Homeland Security boss Janet Napolitano, IP Czar Victoria Espinel, Rep. Lamar Smith, Rep. John Conyers, Senator Patrick Leahy and Senator Charles Grassley), supporting the continued seizure of domain names they don't like, as well as the new COICA censorship bill, despite the serious Constitutional questions raised about how such seizures violate due process and free speech principles. While many reporting on this letter refused to actually post a copy of the full letter, kudos to Greg Sandoval over at News.com for doing so (full text also included after the jump on this post).

The companies try to present a united front that censoring the internet is a good thing. It includes the usual suspects of Viacom and NBC Universal on the content side and Louis Vuitton and Tiffany on the counterfeiting side, but there are a few other interesting names: such as Monster Cable (never met an IP law it didn't want to abuse, apparently), the NBA, MLB and NFL (sports leagues unite in censorship!) as well as Voltage Pictures, famous for suing thousands of fans for downloading Hurt Locker. Activison, which has become increasingly aggressive on IP issues lately is on the list as well, of course. Anyway, here's the full list of companies that support censoring the internet, because they're too lazy to compete in the marketplace or innovate when that market changes:

• Nike - Beaverton, OR
• Achushnet - Fairhaven, MA
• Curb Music Publishing - Nashville, TN
• NBC Universal - New York, NY
• Viacom - New York, NY
• Callaway - Carlsbad, CA
• Cleveland Golf - Huntington Beach, CA
• Rosetta Stone - Arlington, VA
• Activision - Santa Monica, CA
• Adidas Group - Portland, OR
• Xerox - Norwalk, CT
• Hastings Entertainment, Inc. - Amarillo, TX
• Fortune Brands - Deerfield, IL
• Coty Inc. - New York, NY
• EDGE Entertainment Distribution - Streetsboro, OH
• Oakley, Inc. - Foothill Ranch, CA
• PING - Phoenix, AZ
• Louis Vuitton - New York, NY
• D'Addario and Company - Farmingdale, NY
• Monster Cable Products, Inc. - Brisbane, CA
• Tiffany and Co. - New York, NY
• Farouk Systems, Inc. - Houston, TX
• Beam Global - Deerfield, IL
• Chanel USA - New York, NY
• True Religion Apparel, Inc. - Vernon, CA
• Concord Music Group - Beverly Hills, CA
• Village Roadshow Pictures - Beverly Hills, CA
• National Basketball Association - New York, NY
• National Football League - New York, NY
• The Collegiate Licensing Company/IMG College - Atlanta, GA
• Anderson Merchandisers - Amarillo, TX
• Trans World Entertainment Corporation - Albany, NY
• Timberland - Stratham, NH
• Major League Baseball - New York, NY
• Lightening Entertainment/Mainline Releasing - Santa Monica, CA
• Sierra Pictures - Beverly Hills, CA
• Voltage Pictures LLC - Los Angeles, CA
• Worldwide Film Entertainment LLC - Westchester, CA
• Nu Image, Inc. - Los Angeles, CA
• Burberry Limited - New York, NY
• Big Machine Records - Nashville, TN
• The Little Film Company - Studio City, CA
• Columbia Sportswear Company - Portland, OR

These companies are clearly trying to protect their own business interests, but it seems reasonable to let them know that you don't appreciate them seeking to censor the internet. If you haven't been following this story, and want to understand the details, we've discussed why COICA is all about censoring websites without due process and in violation of the First Amendment. We've also discussed how the ongoing (pre-COICA) domain name seizures were riddled with serious errors that appear to violate the law as well, including seizing the domains of blogs regularly used and recognized within the music industry based on evidence involving songs sent by the record labels themselves.

And, of course, none of this is to say that violating copyright or trademark laws should be allowed. But we have a system to deal with such things: you file a lawsuit, you have an adversarial hearing in a courtroom (i.e., due process) and you let both sides present their case. COICA and these domain seizures look to avoid all of that. And that's a big, big problem. That these companies would support such censorship and leapfrogging over due process suggests that they're companies not worth doing business with.

Filed Under: censorship, due process
Companies: activision, louis vuitton, monster cable, nbc universal, nike, tiffany, viacom

Axl Rose Sues Activision For $20M Because Guitar Hero Shows Former GNR Guitarist Slash

from the that's-some-mighty-impressive-hatred dept

How much does Guns 'N Roses singer Axl Rose hate former guitarist Slash? So much that he's suing Activision for $20 million because Activision included a virtual version of Slash in the latest version of Guitar Hero, despite claimed promises not to do so. While the likelihood of success may depend on contract specifics, it does seem rather silly to care about this. The claim that "This lawsuit is about protecting Guns N’ Roses," is obviously bogus. There is nothing about "protecting" involved here.

Filed Under: axl rose, guitar hero, lawsuits, slash
Companies: activision