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IP/Entertainment Case Law Updates

Huffman v. Activision Publishing, Inc.

District court denies motion to strike jury demand by video game developer Activision in lawsuit brought by professional wrestler Booker T. Huffman seeking infringement profits under Copyright Act and damages under Digital Millennium Copyright Act for alleged copying of his “G.I. Bro” persona in Call of Duty: Black Ops 4 video game, holding both statutes constitute legal remedies conferring right to jury trial.

Professional wrestler Booker T. Huffman is the creator of a special operations action hero known as “G.I. Bro,” and he has created copyrighted comic books based on his G.I. Bro persona. In 2019, Huffman sued video game developers and publishers Activision Publishing, Inc., and Activision Blizzard, Inc., for copyright infringement, claiming their depiction of a video game character, David “Prophet” Wilkes, in Call of Duty: Black Ops 4 infringed Huffman’s G.I. Bro character. Huffman also brought a claim against Activision for violating the Digital Millennium Copyright Action (DMCA) by allegedly removing copyright management information, including copyright notices and the identification of Huffman in connection with the G.I. Bro works. 

Huffman demanded a jury trial on his claim for disgorgement of Activision’s profits and for statutory damages under the DMCA. Activision moved to strike Huffman’s jury demand, arguing that the statute providing for infringer’s profits (17 U.S.C. § 504(b)) does not provide a statutory or constitutional right to a jury trial. Similarly, Activision argued that “there is no implicit constitutional right to a jury” under the DMCA (17 U.S.C. § 1203(c)). The district court disagreed on both counts and denied Activision’s motion.

Taking up the analysis of Section 504(b) first, the court declined to accept the District of Minnesota’s analysis in Fair Issac Corp. v. Fed. Ins. Co., on which Activision principally relied. Instead, applying the statutory canons of construction and focusing on congressional intent, the court held that Section 504(b) constitutes a legal remedy providing a right to a trial by jury for three reasons. First, Section 504(b)—unlike the remedies set forth under sections 502, 503, 504(c) and 505 of the Copyright Act—omits the term “the court,” which generally confers authority on a judge rather than a jury. The court observed that the absence of “the court” signaled Congress’ intent to categorize infringer’s profits as legal relief. In fact, the United States Supreme Court distinguished Section 504(b) in the same manner in its 1964 decision in Feltner v. Columbia Pictures. Second, the court inferred from Congress’ “pairing” of actual damages (which are unmistakably a legal remedy) with infringer’s profits in Section 504(b)’s text an intent to provide a statutory right to a jury trial. Third, and “most importantly,” the court took issue with the fact that Activision’s interpretation of Section 504(b) conflicted with long-standing precedent within the Fifth Circuit and throughout the United States, which confirm infringer’s profits are legal damages that carry a right to a jury trial. Having found the existence of a statutory right to a jury trial under Section 504(b), the court declined to engage in a constitutional analysis to address whether the Seventh Amendment also granted such a right.

Turning to Huffman’s DMCA claim, the court initially concluded that the text of 17 U.S.C. § 1203—the statute setting forth remedies for violations of Section 1202—was “too broad” for the court to determine whether a statutory right exists. However, applying substantive canons of construction, i.e., reading Section 1203 in the context of the Copyright Act, the court held that Section 1203(c) does in fact provide Huffman with a statutory right to a jury trial. The court reasoned that there was no meaningful difference in text between statutory damages under Section 504(c) of the Copyright Act and Section 1203(c)(3)(B) of the DMCA. By adopting nearly identical language, the court held, “Congress intended for courts to continue viewing statutory copyright remedies as legal remedies.” Because Congress intended that the DMCA remedy under Section 1203(c)(3)(B) mirror the remedy under Section 504(c), the court concluded that Section 1203(c)(3)(B) provides a right to a jury trial.

Summary prepared by Tal Dickstein and Mary Jean Kim