Activision Fails to Secure Fees in Call of Duty Copyright Appeal

A Texas federal judge rightly denied Activision Blizzard Inc. attorneys’ fees after defeating professional wrestler Booker T’s copyright infringement lawsuit over a character in the video game-maker’s Call of Duty series, the Fifth Circuit ruled Wednesday.

The judge conducted a “careful analysis” to determine that the lawsuit wasn’t objectively unreasonable before rejecting Activision’s request for fees, according to an unpublished opinion issued Wednesday by the US Court of Appeals for the Fifth Circuit.

A Texas jury in 2021 found Activision didn’t infringe Booker T’s “G.I. Bro” comic character with a character in Call of Duty, and the Fifth Circuit upheld the decision in 2022. The US District Court for the Eastern District of Texas denied Activision’s motion for attorneys’ fees the same year and the company appealed, arguing the court abused its discretion by ignoring Fifth Circuit language that “an award of attorney’s fees to the prevailing party in a copyright action is the rule rather than the exception and should be awarded routinely.”

The district court didn’t apply an erroneous view of the law because there is no automatic recovery of attorneys’ fees by the prevailing party, the Fifth Circuit panel said in the opinion. The panel also noted that the lower court did acknowledge that a fee award in copyright infringement cases “is common.”

Though the Texas court didn’t include the “rule” language, it “conducted the same type of analysis we have frequently upheld by stating its conclusions based on the parties’ arguments” and “substantially more,” the opinion said.

Judge Priscilla Richman authored the opinion, which was joined by Chief Judge Jennifer Walker Elrod and Judge Andrew S. Oldham.

Booker T is represented by Dortch Lindstrom Livingston Law Group, Harrison Davis Morrison Jones PC, and the Law Office of Patrick Zummo. Lex Lumina LLP and Gillam & Smith LLP represent Activision.

The case is Huffman v. Activision Publ’g, 5th Cir., No. 22-40072, unpublished 8/6/25.