Activision And Infinity Ward Embroiled In Copyright Infringement Dispute
The apparent copyright owner of a story called November Renaissance — and through that story, a character named Cade Janus — is suing video game production companies Activision, Infinity Ward, and Major League Gaming Corp for the alleged theft and reproduction of the aforementioned character. Clayton Haugen says that his character Janus was reproduced almost exactly in a recently released Call of Duty game.
Here we go again!
Haugen says that his primary driver for creating that character was an eventual movie. He used a popular Twitch streamer named Alex Zedra to further refine that character, using her likeness to copyright a number of photographs he had taken. He used those photos, a biography of the character, and the story of the character to approach film studios. He also used the photos to sell calendars. He published the likeness to Instagram.
Haugen’s complaint alleges that the Call of Duty: Modern Warfare makers also hired Zedra — something that isn’t at all illegal. But if the other allegations are true, then what those makers did is illegal. According to Haugen, the video game companies asked Zedra to dress and pose exactly as she had in the previous photoshoot. Haugen says they even went as far as hiring the same makeup artist!
Haugen is demanding all the profits that are directly attributable to that infringement. That means a lot of lost revenue for Activision and the like.
In their response, the video game companies admit to most of the minor details when designing their own character named Mara. But they also said they “lack knowledge or information…[to] form a brief.” In other words, they’re not ready to wholly deny the accusations. They could be true. Or they might just be a money grab from someone who thinks he can win a case. Who knows?
The companies did, however, deny that they used Janus photographs to model their own character.
They wrote in their response, “A claim for infringer’s profits is an equitable one and is not triable of right by a jury. Furthermore, a claim for statutory damages is not triable of right by a jury.”
They also said they don’t believe Haugen is entitled to damages at all. Following their denials, the companies provided a number of legal excuses that might mean they wouldn’t have to pay damages even if Haugen’s claims were true. When you’re not sure what will work, why not fling enough crap at the wall that something is bound to stick?
They wrote, “Any use of Plaintiff’s copyrighted materials is protected by the First Amendment of the United States Constitution and/or 17 U.S.C. 107.”
For the record, the First Amendment does not protect those who steal copyrighted ideas. That’s not quite how it works.
There are, however, limits on when and how lawsuits can be brought to a court’s attention and then resolved — and Haugen may have jumped on that train far too late.