Intellectual Property

Does Wrestler Booker T. Have A Valid Copyright Infringement Claim Over Call Of Duty: Black Ops 4 Character?

Is it an especially distinctive character or merely a stock character?

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Whether copyright can protect fictional characters isn’t disputed; since 1930, courts have found that fictional characters may be protected by copyright. However, just because characters may be eligible for copyright, does not mean that all characters are entitled to protection. Indeed, in the very case finding that copyright protection can extend to fictional characters, the court determined that no copyright infringement existed because the characters-at-issue were stock characters. The first thing every copyright student learns—which applies not only to copyrightability of fictional characters, but to works generally—is that ideas are not protectable by copyright, only the expression of the idea. This outcome is known as the idea/expression dichotomy, a logical result of which is that stereotypical characters and tropes cannot be copyrighted.

Recently, Booker T. sued the video game company Activision for alleged copyright infringement over a character in the game Call of Duty: Black Ops 4, David “Prophet” Wilkes. For those of you who have no idea who Booker T is (I certainly didn’t), I looked him up for you. According to his Wikipedia page, Booker T was a popular professional wrestler with the World Championship Wrestling (WCW) and the World Wrestling Federation/Entertainment (WWF/E) wrestling promotions—both of which, I gather, were entertainment based and not actual wrestling competitions. These wrestling matches are scripted, intended to entertain the audience with fictional storylines involving invented characters that the wrestlers play. Which brings us to this lawsuit. Robert Booker Tio Huffman, better known as “Booker T” claims that one of the Call of Duty: Black Ops 4 infringed on the character he created as a professional wrestler known as “G.I. Bro” in the early 1990s. Booker T later created a comic book based on G.I. Bro, which is the subject of the lawsuit.

Each character’s story is as follows: G.I. Bro is a retired special op soldier who fights old enemies, with the support of military friends. David “Prophet” Wilkes is a cybernetically enhanced soldier, whose body has been technologically upgraded, though he appears in Black Ops 4 (which is the prequel to Black Ops 3) prior to his cyber-enhancements. In terms of how they look, both G.I. Bro and Prophet are African American characters with dreadlocks wearing black clothing and carrying a gun. Certainly, in the side-by-side photos included in the complaint, there are visual similarities between the images—but that’s not enough to prove copyright infringement.

So, does Prophet infringe on the character of Booker T? First, let’s take a look at case where a fictional character did qualify for copyright protection: Batmobile. In DC Comics v. Towle, the Ninth Circuit found that Batmobile, as it appeared in comic books, television and films, was entitled to copyright protection. In so holding, the Ninrth Circuit used the three-part test for character copyrightability: 1) character possesses physical and conceptual qualities; 2) sufficiently delineated with consistent character traits; and 3) is especially distinctive, with unique elements of expression—in other words, it cannot be a stock character. The Batmobile qualified for being always “bat-like” in appearance, with crime-fighting, sleek traits with modern weaponry and technology. The minor changes between different versions of the Batmobile the Ninth Circuit likened to costume changes.

Here, Booker T. and Prophet do share some physical and conceptual qualities in that they look similar and share the characteristic of having been soldiers. If Booker T. is consistently dressed in the same way, always carrying a large weapon, always manifesting the same attributes, then the character might be sufficiently delineated to be recognizable. The biggest problem, however, is meeting the “especially distinctive” prong. Unlike the Batmobile, which is a crime fighting vehicle that is always “bat like” in appearance, the character of Booker T. doesn’t seem to be particularly distinctive or include unique elements of expression. The elements of Booker T. that are shared with Prophet are that they are African American with long dreads, wearing black and carrying a gun. This seems to be a stock character for a work in the action genre and holding otherwise would prevent the use of all characters that appear in this manner. Additionally, while characters need not share the same name for infringement, the fact that they are vastly different and the differences between the storylines should be taken into consideration.

While a highly distinctive character like the Batmobile or James Bond is certainly entitled to copyright protection, it’s less clear that Booker T. created an especially distinctive, rather than a mere stock character.

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Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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