A recent Law 360 story by Lynn LaRowe, “5th Circ. Takes Up Atty Fees in Wrestler’s Failed IP Suit” reports that Activision Blizzard Inc. should be awarded attorney fees after a Texas jury found the company's Call of Duty character David "Prophet" Wilkes did not infringe pro wrestler Booker T's "G.I. Bro" copyright, the video game company told the Fifth Circuit during oral arguments.

After the issue of whether the Prophet character infringed Booker T's persona was decided in Activision's favor by a jury at the end of a four-day trial in June 2021,  Activision appealed U.S. District Judge Robert Schroeder III's decision to let both sides bear their own costs, arguing the judge abused his discretion by failing to properly analyze the merits of Booker T's lawsuit.

Activision attorney Jessica Lanier of Durie Tangri LLP argued Judge Schroeder was out of bounds when he ruled that it was reasonable for Booker T to have brought the suit, which led the panel to point out the case had survived numerous pretrial motions, including a motion to dismiss Judge Schroeder denied in February 2020.

Lanier also argued Judge Schroeder should have based his decision regarding fees on more than just the objective reasonableness of the factual and legal elements of the case, as established by the U.S. Supreme Court in Fogerty v. Fantasy Inc.  Fogerty provides a test for determining whether to award fees, which also provides for analyses based on frivolousness, motivation, and the needs for compensation and deterrence of bad faith litigation.

Patrick Zummo, an attorney representing Booker T, whose full name is Robert Booker Tio Huffman, argued the trial court had considered all of the Fogerty factors, but determined that the objective reasonableness component, which the trial court found weighed against awarding fees to Activision, was the most important in deciding the issue.  "First, we had a hearing," Zummo said, noting that hearings regarding attorneys fees in copyright cases are not routine.