United States Court of Appeals

for the Fifth Circuit

No. 22-40067

Summary Calendar

Booker T. Huffman, 

Plaintiff—Appellant,

versus

Activision Publishing, Incorporated; Activision 

Blizzard, Incorporated; Major League Gaming 

Corporation; Treyarch Corporation, 

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 2:19-CV-50

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant Booker T. Huffman (“Booker T”) sued 

Defendants-Appellees (collectively, “Activision”) for copyright 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 11, 2022

Lyle W. Cayce

Clerk

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infringement under 17 U.S.C. § 501 and violation of the Digital Millennium 

Copyright Act, 17 U.S.C. § 1202. The jury returned a verdict of no 

infringement, and the district court entered an order dismissing the case. 

Booker T appealed. We AFFIRM.

I. Background

Booker T is a professional wrestler who sometimes uses the in-ring 

persona, “G.I. Bro.” In 2015, Booker T teamed up with Travis Huffman to 

create cartoon versions of G.I. Bro and comic books based on the character

(collectively, the “G.I. Bro works”). Booker T registered the comic books

and illustrations with the United States Copyright Office. He also promoted 

his character and the comic books by appearing at comic book events dressed 

as G.I. Bro.

Activision published a series of multiplayer, first-person shooter 

videogamestitled, “Call of Duty.” One of the games, Call of Duty: Black Ops 

III included a character named David “Prophet” Wilkes, who had replaced 

ninety percent of his body with cybernetics to enhance his fighting ability. In 

2018, Activision released a prequel to Black Ops III called Call of Duty: Black 

Ops IV, which depicted Prophet as he was before he remade himself. This 

depiction of Prophet and the cartoon image of G.I. Bro both have a muscular 

build, similar skin tone and facial expression, dreadlocks worn under a black 

skull cap, military style clothing including ammunition holders strapped to 

their bodies, and assault rifles held in a similar fashion.

Booker T brought an action for copyright infringement against 

Appellees alleging that Prophet was a copy of one of his G.I. Bro works—a 

G.I. Bro poster. Before trial, Activision moved in limine to exclude, inter alia, 

evidence of alleged other instances of copyright infringement by Activision. 

This included evidence regarding any alleged resemblance between (1) the 

character Battery from Black Ops IV and Charlize Theron and/or her 

character Furiosa in Mad Max: Fury Road and (2) the character Torque in 

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Black Ops IV and Kristofer Hivju and/or his character Tormund Giantsbane 

in Game of Thrones (collectively, the “Battery and Torque exhibits”). 

Huffman agreed to seek leave from the court before introducing these 

exhibits. 

At trial, after Activision’s witness, Dan Bunting, testified as to the 

development of the Prophet character, Booker T’s counsel approached he 

bench seeking to introduce evidence of other copying, ostensibly to test the 

credibility of Bunting’s statement that the company uses a “rigorous process 

. . . to ensure there’s no improper use of any kind of outside reference.” The 

district court ruled that the evidence would not be admitted. 

On the following day, after Activision completed its trial presentation, 

but before the partiesrested, Booker T’s counsel stated that he had “exhibits 

we would like to offer as an offer of proof into the [c]ourt’s record[,]” 

including the Battery and Torque exhibits. Activision objected to the 

documents on the grounds that Booker T had not offered the exhibits during 

the earlier bench conference that followed Bunting’s testimony, the 

magistrate judge heard and rejected the same arguments at the pre-trial 

conference, the documents were counsel-created, and allowing the exhibits 

to come in would violate Federal Rule of Evidence 404. The district court 

stated that “balancing the relevancy and probative value against the prejudice 

and delay . . . it was a very easy call” not to admit the exhibits. The district 

court permitted Booker T to file the exhibits on the docket as an offer of 

proof, and he did so after the trial had concluded. 

The jury returned a verdict in favor of Activision, concluding it did 

not infringe Huffman’s copyright in the G.I. Bro poster. Huffman appealed.

The issue on appeal is whether the district court abused its discretion by 

excluding the Battery and Torque exhibits.

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II. Standard of Review 

“We review a district court’s evidentiary rulings for an abuse of 

discretion.” United States v. George, 201 F.3d 370, 372 (5th Cir. 2000). “A 

trial court abuses its discretion when its ruling is based on an erroneous view 

of the law or a clearly erroneous assessment of the evidence.” Bocanegra v. 

Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003). “If we find an abuse of 

discretion in admitting or excluding evidence, we next review the error under 

the harmless error doctrine, affirming the judgment, unless the ruling 

affected substantial rights of the complaining party.” Id. “[W]e ‘may not 

disturb the district court’s exclusion of the evidence . . . if that ruling can be 

upheld on other grounds, regardless of whether the court relied on those 

grounds.’” Viazis v. Am. Ass’n of Orthodontists, 314 F.3d 758, 767 (5th Cir. 

2002).

III. Discussion

Booker T argues that the district court abused its discretion when it

excluded the Battery and Torque exhibits because it did not properly weigh 

their probative value against the alleged danger of unfair prejudice or undue 

delay. Activision counters that the Battery and Torque exhibits are character 

evidence barred by Rule 404 and that even if they were relevant for a purpose 

not forbidden by Rule 404, their probative value was substantially 

outweighed by their prejudice. We agree with Activision.

Federal Rule of Evidence 404 prohibits the introduction of character 

evidence or other bad acts “to show that on a particular occasion the person 

acted in accordance with the character.” Fed. R. Evid. 404(a)(1), (b)(1). 

Federal Rule of Evidence 403 provides that “[t]he court may exclude 

relevant evidence if its probative value is substantially outweighed by a 

danger of one or more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” Fed. R. Evid. 403.

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Booker T contends that he sought to introduce the Battery and 

Torque exhibits to rebut and impeach Bunting’s testimony that Activision 

acted in accordance with the rigorous process he described, “not to prove 

that it infringed [Booker T’s] copyright because of a character trait.” But we 

have explained that “[e]ven where the evidence serves some conceivable 

non-character purpose such as impeachment, we still must carefully consider 

whether the introducing party was actually ‘attempting to convince the jury 

that [the defendant] was a bad man’ who acted in conformity with his bad 

character in the case at hand.” In re DePuy Orthopaedics, Inc., Pinnacle Hip 

Implant Prod. Liab. Litig., 888 F.3d 753, 785 (5th Cir. 2018). “If yes, the 

unduly prejudicial effect of such an argument will very likely substantially 

outweigh its probative value.” Id.

Here, Booker T’s assertions before the district court and on appeal 

demonstrate that by attempting to introduce the exhibits purportedly 

evidencing other instances of copying, he intended to show that Activision 

acted in conformity with its bad character in the instant case. First, during 

Booker T’s offer of proof, counsel stated in reference to the previous day’s 

bench conference, “I approached the bench to talk about other instances of 

infringement.”1 Similarly, in his post-trial opposition to Activision’s motion 

for attorney’s fees, Booker T stated, “the evidence, which did not get 

admitted at trial, shows that Defendants’ use of the works and images of 

others is quite vast.” On appeal, Booker T reasons that because the Battery 

and Torque exhibits show that Activision’s creation of two other characters 

involved the improper use of “outside references,” the exhibits could have 

1 Now, on appeal, Booker T contends that Activision’s creation of Battery and 

Torque were not “other acts” within the meaning of Rule 404 because they were in the 

same game as Prophet and were thus subject to the same Activision process. But Booker T 

cannot have it both ways. That is, he cannot refer to the creation of Battery and Torque as 

“other instances of infringement” while claiming that these were not “other acts.”

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rebutted and impeached Bunting’s testimony in two ways: the jury could 

have concluded (1) “that Activision’s process did not work as Bunting said it 

did” and (2) “that Activision and Bunting did not follow the procedure he 

described.” It follows from these arguments that Booker T wanted the jury 

to doubt Bunting’s testimony and to conclude, based on Activision’s alleged 

copying, that it had failed to abide by its rigorous process in the past, and thus

had similarly failed in this case. This is improper character evidence under 

Rule 404.

Moreover, even if the exhibits concerning Activision’s development 

of other characters were relevant to the question of whether it copied the G.I. 

Bro poster to create Prophet’s image, the district court was still within its 

discretion to exclude the Battery and Torque exhibits based on the dangers 

of unfair prejudice and undue delay. The exhibits were highly prejudicial 

because they served to compel the jury to infer that if Activision copied with 

respect to Battery and Torque, it must have similarly copied to create 

Prophet. This prejudicial effect is compounded by Booker T’s lack of proof 

that the creation of Battery and Torque involved improper copying. See Fed. 

R. Evid. 104(b) (“When the relevance of evidence depends on whether a 

fact exists, proof must be introduced sufficient to support a finding that the 

fact does exist.”). 

Regarding undue delay, the district court reasoned that admitting the 

exhibits “would have resulted in a series of mini trials.” As Activision points 

out, had the Battery and Torque exhibits been admitted, it likely would have 

had to present evidence and testimony to refute Booker T’s assertion that 

those exhibits represented other instances of copying—evidence such as an 

explanation of the casting for the model on whom Torque was based, 

testimony by that model, or expert testimony explaining the archetypes 

Torque was based on. In light of the minimal relevance and probative value 

of the Battery and Torque exhibits, we agree with the district court’s 

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assessment that the scale tipped toward unfair prejudice and undue delay. 

We cannot say that this determination was based on an erroneous view of the 

law or a clearly erroneous assessment of the evidence. See Bocanegra, 320 

F.3d at 584. Accordingly, we hold that the district court did not abuse its 

discretion in excluding the Battery and Torque exhibits.2

IV. Conclusion

For the foregoing reasons, the district court’s judgment is

AFFIRMED.

2 Because we conclude that there was no abuse of discretion, we need not reach 

Booker T’s argument that the exclusion of the Battery and Torque exhibits affected his 

substantial rights.

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