BROOKS ENTERTAINMENT, INC. v. ACTIVISION BLIZZARD, INC. and ROCKSTAR GAMES, INC.
Case No.: 21-CV-2003 TWR (MDD)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
July 12, 2022
(ECF Nos. 21, 22, 26, 34, 35)
Presently before the Court are Defendant Activision Blizzard Inc. (“Activision“) and Defendant Rockstar Games Inc.‘s (“Rockstar“) Motions for Sanctions Pursuant to Rule 11. (See ECF Nos. 34, 35 respectively.) Counsel for Plaintiff Brooks Entertainment, Inc. (“Brooks“) opposed both motions, (see ECF Nos. 36, 37), to which Activision and Rockstar filed replies. (See ECF No. 40, 41 respectively.) The Court held a hearing on the motions on May 26, 2022. (See ECF No. 44.) Following the hearing, Plaintiff‘s counsel submitted a collection of documents on which it relied prior to filing Brooks’ Complaint, (see ECF
BACKGROUND1
Plaintiff Brooks describes itself as a “financial and entertainment consultant corporation [that] helps its customers build their financial empire safely and hosts a TV show aimed at encouraging and empowering youth to take control of their destiny and become successful adults.” ((“Compl.“), ECF No. 1 ¶ 9.) Brooks was formed in 2002 by Shon Brooks. (Id.) Brooks asserts that it has “created content, a platform, concepts and graphics for interactive video games [that] are aimed at empowering youth.” (Id. ¶ 10.) The games are titled “Stock Picker” and “Save One Bank.” (Id.)
Brooks owns a trademark for “SHON BROOKS,” which was “first used in commerce in 1986 and was registered January 15, 2019.” (Id. ¶ 14.)2 Brooks owns the copyrights for Stock Picker and Save One Bank. (Id. ¶ 15.) Brooks additionally asserts that “Amazon and Amazon Fashion distribute and manufactures Brooks Entertainment Inc.‘s (Fran Shatone) clothing merchandise and technology toys.”3 (Id. ¶ 16.) Brooks alleges that, “[f]rom 2010 and through 2015[,] Brooks Entertainment was talking to and provided a pitch to Blizzard, Activision and Rockstar Games, Inc. to create a game. The pitch was copyrighted. Many meetings and emails were exchanged between these parties through the following individuals[:] Sarah Shafer[,] who worked for Rockstar and was a partner of Blizzard[;] Gordon Hall of Blizzard/Activision[;] and Sam Houser of Rockstar.”
In 2016, Call of Duty: Infinite Warfare (“COD“) was released. (See ECF No. 35-5, Ex. A; Compl. ¶ 21.) Brooks alleges that “Activision along with Rockstar used the main character, content, scripts, images and details it was given in confidence . . . to develop” COD. (Compl. ¶ 21.) Further, Brooks contends that “Defendants are using Sean Brooks as its main character in ‘Call of Duty‘” and that “this character uses the likeness, persona and name of Plaintiff‘s owner Shon Brooks and further infringes on Plaintiff‘s trademark for SHON BROOKS.” (Id. ¶ 23.) Finally, Brooks alleges that Defendants use “Sean Brooks” as the main character in their “gambling platform” and “conduct global esports playoffs and championships” using COD, which infringes on Plaintiff‘s copyrights and its trademark. (Id. ¶¶ 26–27.) Plaintiff provides the following as examples of material “stolen” from the copyrighted script:
- Sean (Shon) Brooks has missiles at [his] disposal;
- Save One Bank is uniquely played in First Person Shooter and Third Person Shooter and Call of Duty copied the same format and is played in First Person Shooter and Third Person Shooter;
- Both games are played offshore;
- The main characters of the games both bring thieves to justice;
- Shon Brooks has unlimited resources being an undercover agent of the Crystal Bank. Shon Brooks has access to not only financial means, but access to the latest cars, planes, boats and upscale computer technologies and Sean Brooks in the Call of Duty game copied this by having unlimited resources;
- Shon Brooks navigates through both exotic and action-packed locations and Sean Brooks navigates thru both exotic and action-packed locations;
Shon Brooks controls [a] character during a single and multiplayer campaign and experience and Sean Brooks controls [a] character during a single and multiplayer campaign and experience; - Save One Bank script has a day and a night mode for the game and Call of Duty script has a day and a night mode for the game;
- Shon Brooks travelled to the Red Planet or Mars and Sean Brooks travelled to the Red Planet or Mars;
- Save One Bank script has red orbit sky and Call of Duty now has red orbit sky [that] is identical;
- Shon Brooks[‘] scripted game battle scenes take place in a high fashion couture shopping center mall and Sean Brooks[‘] scripted game battle scenes take place in a high fashion couture shopping center mall.
(Id. ¶ 28.)
On October 8, 2021, Plaintiff‘s counsel emailed Activision and Rockstar to inform them that its client, Brooks, owns “many copyrights and trademarks for its works including for “SHON BROOKS,” and its games, “STOCK PICKER” and “SAVE ONE BANK” (collectively, the “Brooks IP“).4 (See ECF No. 35-5, Ex. A.) Plaintiff‘s counsel claimed that Activision‘s game, COD, infringes upon the Brooks IP. (Id.) Further, Plaintiff‘s counsel alleged that Rockstar “was the one who shared Brooks’ copyrights scripts and images with Activision“—alleging “[t]he lead character, many of the scenes, the premise, the story lines, and other characters in th[e] game were stolen from Brooks’ games Save One Bank and Stock Picker.” (Id.) Plaintiff‘s counsel stated that, “[f]rom 2010 and through 2015[,] Brooks was talking to and provided a pitch” to Activision and Rockstar to create a game.” (Id.) Accordingly, “many meetings and emails were exchanged between
Among the requested remedies, Plaintiff‘s counsel demanded that Defendants “pay Brooks the amount of 10% of the gross sales” earned to date on COD. (See ECF No. 35-5, Ex. A.) Plaintiff‘s counsel also demanded that the “SEAN BROOKS character be morphed into . . . SHON BROOKS.” (Id. (emphasis added).)
On October 27, 2021, Rockstar responded, informing Plaintiff‘s counsel that “Rockstar did not produce or develop Call of Duty and does not control or derive any revenue from the game.” (See ECF No. 35-5, Ex. B.) Rockstar invited Plaintiff‘s counsel to produce “any documents in [Plaintiff‘s counsel‘s] possession that [Plaintiff‘s counsel] believe[s] substantiate Brooks[‘] claim against Rockstar” for Rockstar to review. (Id.) Subsequently, Plaintiff initiated this case on November 30, 2021. (See generally Docket.)
LEGAL STANDARD
A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates
One of the fundamental purposes of
ANALYSIS
I. The Parties’ Positions
A. Activision
On January 7, 2022, Activision‘s counsel put Plaintiff‘s counsel on notice that if it was “unwilling to dismiss the Complaint” Activision was “prepared to serve [Plaintiff‘s counsel] with a motion for sanctions under
Activision provides examples of some of the “delusional” claims including: (1) “Sean Brooks” is a common name and Activision‘s character is “Sean,” not “Shon” like Plaintiff; (2) Activision‘s “Sean” is “an armored Irish space marine,” while the Plaintiff “Shon” is “an African American San Diego-based financial consultant and cigar salesman;” and (3) Plaintiff claims Infinite Warfare is substantially similar to “undisclosed and unpublished concepts for two educational games designed to teach children about the stock market and the U.S. banking system.” (Id.) Activision asserts that “it is inconceivable that Plaintiff‘s counsel—who are highly trained and experienced intellectual property lawyers—did not know this.” (Id. at 19 (internal citation omitted).)
Activision has incurred fees from “researching and investigating the claims, collecting documentary evidence, preparing a motion to dismiss and SLAPP motion, and engaging in conferences with Plaintiff‘s counsel.” (Id. at 20.) Thus, Activision requests that the Court order Plaintiff‘s counsel to “pay all of the reasonable attorney‘s fees and costs that Activision needlessly incurred in defending against Plaintiff‘s frivolous claims, including the fees incurred for bringing this
B. Rockstar
On March 2, 2022, Rockstar served Plaintiff‘s counsel with its Motion for Sanctions and a request that Brooks withdraw his Complaint within twenty-one days. (See ECF No. 35-3 ¶ 18.) On March 4, 2022, Plaintiff‘s counsel informed Rockstar that its client, Shon Brooks, would be “willing to dismiss Rockstar from the Action without prejudice.” (See ECF 32-3, Ex. B.) Subsequently, on March 11, 2022, Plaintiff‘s counsel reversed course and notified Rockstar that its client would no longer “allow [them] to file a Voluntary Dismissal under
Further, Rockstar asserts that “[Plaintiff‘s counsel] has identified no credible evidence that Rockstar created, released, published, or had any involvement in Call of Duty in any way.” (Id. at 13.) Activision is, in fact, a competitor of Rockstar in the video industry. (ECF 35-2 ¶ 3.) “Neither Rockstar nor [its parent company] Take-Two have a corporate relationship with Activision.” (Id.)
Rockstar further contends that the Complaint is legally baseless because it is (1) barred by statute of limitations; (2) “[Plaintiff‘s counsel] cannot allege that Rockstar violated any of Brooks[‘] exclusive copyright rights through Call of Duty because Rockstar did not reproduce, distribute, display, or have any other involvement in that game“; and (3) [Plaintiff‘s counsel] has no credible basis to allege that Rockstar used Brooks[‘] trademark or appropriated Shon Brooks[‘] likeness.” (ECF No. 41 at 7.)
C. Procopio
Plaintiff‘s counsel opposes sanctions, asserting that, when it “filed its Complaint, [it] had a good faith and well-supported basis to believe it was well-grounded in fact and law.” (ECF No. 36 at 1.) Plaintiff‘s counsel asserts that, over the course of six months prior to filing the instant case, it performed an adequate pre-filing investigation that included:
- numerous meetings and phone calls with the client;
- reviewing all documents provided by client Brooks Entertainment which included numerous emails between Rockstar employees and the client along with documents provided to Rockstar which included copyrighted game scripts prepared by Brooks;
- reviewing the United States Copyright Office Records and the deposit material provided by the entity who filed these copyrights on behalf of Brooks;
- reviewing the trademarks relevant to this
action owned by Brooks and the prosecution histories; - reviewing the Call of Duty Game trailer,6 game excerpts, summaries, internet advertising clips; [and]
- conducting an extensive search of publicly available information including publications, websites, blogs and internet articles on Activision, Call of Duty: Infinite Warfare, Sam Houser, Gordon Hall, and Sara Shafer.
(ECF No. 37 at 15.) Further, Plaintiff‘s counsel contends it “learned through its investigation that Sean Brooks is a key character” who “resembl[es] Shon Brooks’ involvement with the Olympics and his involvement with NASA.” (ECF No. 36 at 2.) “[T]he factual inaccuracies highlighted by Activision are either disputed, or even if those allegations are actually inaccurate, do not completely undermine Plaintiff‘s case.” (Id. at 7.) Finally, Plaintiff‘s counsel argues that “because of the pending motion to withdraw it is no longer prosecuting the claims that Rockstar and Activision aver constituted frivolous filings” and that because it requested to withdraw prior to Defendants filing their motions for sanctions, it is “no longer presenting the claims to the Court for purposes of
II. Hearing on the Motions for Sanctions
At the hearing on May 26, 2022, Plaintiff‘s counsel stated that “the facts show that back [in] 2014, 2015, 2016 [their] client was corresponding with Rockstar.” (5:10–11.) She instructed the Court that “the emails” contained the facts alleged in the Complaint. (Id. 13–16.) Plaintiff‘s counsel stated, “Gordon Hall who was at Rockstar moved over to Activision. So to us it looked like he brought with him a lot of information that he had
Plaintiff‘s counsel also represented that she “reviewed about five different portions of the game, 45 minutes a portion approximately . . . the client had identified to me the portions of the game that matched the copyrighted scripts that he had provided to the defendants.” (Id. at 7:16–20.) Plaintiff‘s counsel stated that upon her review of “the game and the trailer, S[ean] Brooks was a character in the game that was preeminent.” (Id. at 8:5–7.) Plaintiff‘s counsel represented that the character Sean Brooks and Plaintiff Brooks were “the same build and stature,” “[h]e went to similar places that they did,” and “[he] collected the similar types of weapons and ammunition that they did.” (Id. at 8:8–13.) Additionally, Plaintiff‘s counsel relied on Brooks’ scripts where “they talk about this player will have the missiles to go to planet Mars or to invade the bank vault on Wall Street.” (Id. at 9–13.) Finally, Plaintiff‘s counsel stated that she viewed the “trailer that had shown Wall Street.” (Id. at 10:6–8.)
Plaintiff‘s counsel offered to provide “all” the emails she had reviewed to the Court, noting that “[t]here are Rockstar addresses,” and she “thought [she] provided them” previously to Rockstar. (Id. 14:7–9.) According to Plaintiff‘s counsel, she was “looking at the causal connection between Gordon Hall and Activision and Rockstar. [Plaintiff‘s Counsel] did [their] due diligence to figure out that Gordon Hall overlapped between Rockstar and Activision, according to what [they] learned on the internet.” (Id. 14:20–24.) She asserted that it was not until after filing “the complaint that additional information came out.” (Id. at 14:25–15:1.) Plaintiff‘s counsel stated, “I think the facts at the time [] the complaint was filed showed that [Rockstar] should be part of the complaint.” (Id. at 16:4–6.)
After Rockstar put Plaintiff‘s counsel on notice that Rockstar was improperly named in the Complaint, Plaintiff‘s counsel did some “more digging” and found “some information that Gordon Hall had been back and forth” and “confirmed that with multiple sources.” (Id. at 17:1–6.) Plaintiff‘s counsel further stated that she “confirmed with [her]
III. Complaint
Plaintiff filed claims for (1) Trademark Infringement in violation of the Lanham Act,
A. Trademark Infringement
“A successful trademark infringement claim under the Lanham Act requires a showing that the claimant holds a protectable mark, and that the alleged infringer‘s imitating mark is similar enough to ‘cause confusion, or to cause mistake, or to deceive.‘” Ironhawk Techs., Inc. v. Dropbox, Inc., 2 F.4th 1150, 1159 (9th Cir. 2021) (quoting Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir. 2005)). The holder of a registered mark “has a civil action against anyone employing an imitation of it in commerce when ‘such use is likely to cause confusion, or to cause mistake, or to deceive.‘” KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 117 (2004); see also
Section 1114(1) “requires a showing that the defendant‘s actual practice is likely to produce confusion in the minds of consumers about the origin of the goods or services in
The Ninth Circuit has adopted the test articulated in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), to evaluate claims under Section 43(a) of the Lanham Act as limited by the First Amendment.7 Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1239 (9th Cir. 2013). Under the Rogers test, “§ 43(a) will not be applied to expressive works unless the [use of the trademark] has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the [use of the trademark] explicitly misleads as to the source or the content of the work.” Id.
The COD game at issue in this case is subject to First Amendment protection. See id. at 1248 (“As expressive works, the Madden NFL video games are entitled to the same First Amendment protection as great literature, plays, or books.“); see also Brown v. Entmt. Merchants Ass‘n, 564 U.S. 786, 790 (2011) (“California correctly acknowledges that video games qualify for First Amendment protection.“). In Brown v. Electronic Arts, Inc., former NFL star, Hall-of-Famer, entertainer, and public servant Jim Brown challenged the applicability of the Rogers test to his case against the maker of the “Madden NFL” game. 724 F.3d at 1239–40. The Ninth Circuit stated “[t]here is no question that he is a public
Here, Plaintiff primarily complains that the name “Sean Brooks as the main character” in COD is “virtually the same and confusingly similar” to Shon Brooks. (Compl. ¶ 31.) As stated above, however, the risk of confusion test has been rejected when evaluating an expressive work, such as COD, in favor of the Rogers test. Thus, the Complaint is legally baseless. Further, the Court would not even reach the Rogers test here because there is no indication of any similarities between Sean Brooks and Shon Brooks such that Defendants’ “actual practice is likely to produce confusion.” See
B. Copyright Infringement
“To prove copyright infringement, a plaintiff must demonstrate (1) ownership of the allegedly infringed work and (2) copying of the protected elements of the work by the defendant.” Unicolors, Inc. v. Urb. Outfitters, Inc., 853 F.3d 980, 984 (9th Cir. 2017) (quoting Pasillas v. McDonald‘s Corp., 927 F.2d 440, 442 (9th Cir. 1991)).
Plaintiff produced the copyrighted paperwork, (see Compl. Ex. B); however, Plaintiff did not produce any “direct evidence of copying” or “circumstantial evidence that (1) the defendant had access to the copyrighted work prior to the creation of defendant‘s work and (2) there is substantial similarity of the general ideas and expression between the copyrighted work and the defendant‘s work.” Unicolors, 853 F.3d at 984–85. Additionally, “when similar features in a videogame are ‘as a practical matter indispensable, or at least standard, in the treatment of a given [idea],’ they are treated like
The similarities alleged in this case—for example, a videogame played “offshore,” use of “exotic locations,” and travelling to other planets, (Compl. ¶ 28)—are so broad and generally applicable to the videogame industry that they could not be protected by copyright, even if Plaintiff had been able to produce evidence of access and similarity. Further, and much more troubling, other allegations are blatantly false. For example, COD is a first-person shooter game, not first- and third-person as alleged,9 and Sean Brooks does not conduct a scripted battle scene in a high fashion couture shopping mall. (ECF No. 34-3 ¶ 9.) Plaintiff‘s counsel could have easily verified these facts prior to filing the factually baseless Complaint, just as the Court easily verified them within the first hour and a half of playing the game. Finally, there is no indication that either Defendant ever received the copyrighted materials. In fact, the documents Plaintiff‘s counsel relied upon and shared with the Court show that the emails containing the materials were sent only to former Rockstar HR Manager, Sarah Shafer, and never received any response. (See ECF No 45-1 at 8–11, 58, 61.)
C. Commercial Appropriation of Likeness
Section 3344 dictates, “[a]ny person who knowingly uses another‘s name, voice, signature, photograph, or likeness, in any manner, or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person‘s prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.”
Under the language of Section 3344, Defendants did not use Plaintiff‘s “name, voice, signature, photograph, or likeness in any manner.”
Additionally, the statute requires that the likeness be used “for purposes of advertising or selling,” id., but there is no indication of how use of “Shon Brooks‘” name and likeness in COD would serve such a purpose. Thus, there is no legal basis for Plaintiff‘s commercial appropriation claim.
IV. Sanctions Warranted
Plaintiff‘s counsel failed adequately to investigate the accuracy of including Rockstar as a Defendant, as evidenced by Plaintiff‘s counsel‘s initial voiced intention to dismiss Rockstar as a Defendant. See Holgate v. Baldwin, 425 F.3d 671, 677 (9th Cir. 2005) (“[The plaintiff‘s] second counsel recommended that they request voluntary dismissal of the complaint suggests that [the plaintiff‘s counsel] did not conduct a reasonable inquiry before filing the complaint.“). Additionally, all the information the Court has relied upon—both through its own cursory investigation and the materials submitted by the Parties—was available to Plaintiff‘s counsel when it decided to file the Complaint. See Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1364 (9th Cir. 1990) (“[W]hether a pleading is sanctionable must be based on an assessment of the knowledge that reasonably could have been acquired at the time the pleading was filed.”11 (citing Oliveri v. Thompson, 803 F.2d 1265 (2d Cir. 1986))).
Despite the record in this matter confirming a clear lack of pre-filing diligence undertaken by Plaintiff‘s counsel, Plaintiff‘s counsel maintained at oral argument that it was objectively reasonable to file the Complaint. (See ECF No. 49, Tr. 5:5–8.) Plaintiff‘s counsel persisted that “the facts at the time of the complaint . . . showed that [Rockstar] should be part of the complaint” (see id. at 16:4–6), that upon review of “about five
Following the hearing, the Court granted Plaintiff‘s counsel a final opportunity to convince the Court to reverse its tentative ruling to grant the motions for sanctions by inviting counsel to submit supplemental briefing regarding “any additional information [Plaintiff‘s counsel] think[s] pertains to . . . whether or not the complaint is legally and factually baseless from an objective perspective” and “whether the attorneys who filed the complaint conducted a reasonable and competent inquiry before signing it and filing it with the court.” (See id. at 22:20–23:2.) However, the documents submitted in response to the Court‘s solicitation—which include many duplicative documents, documents recently pulled from online, irrelevant pages of photos/links, and press distributed by Brooks, (see ECF No. 45)—serve only to reinforce the Court‘s initial inclination that sanctions are warranted. Indeed, as demonstrated in the following chart, the supplemental documents Plaintiff‘s counsel submitted to the Court actually contradict allegations made in the Complaint, thereby substantiating counsel‘s lack of initial diligence:
| Complaint Allegation (ECF No. 1) | “Documents Relied on by Counsel” (ECF Nos. 45-1, 45-2, 45-3)12 |
|---|---|
| ¶ 19 (emphasis added): “From 2010 and through 2015[,] Brooks Entertainment was talking to and provided a pitch to Blizzard, Activision and Rockstar Games, Inc. to create a game. The pitch was copyrighted. Many meetings and emails were exchanged between these parties through the following individuals[:] Sarah Shafer who worked for Rockstar and was a partner with [] Blizzard, Gordon Hall of | 1. Plaintiff‘s first email contact with Sarah Shafer was on November 15, 2010, when Michael Dabney (Brooks’ PR) emailed Shafer to follow up on a phone call between Brooks and Shafer. (See ECF 45-1 at 10–11.) Dabney sent information about Brooks’ “financial literacy project based on interactive computer games he is creating.” (See id.) Shafer, a Manager in Human Resources, responded that she would |
| Blizzard/Activision[,] and Sam Houser of Rockstar.” | “pass [the information] onto our corporate office to Marketing.” (See id. at 9.) On November 17, 2010, Dabney followed up, requesting that Shafer also forward to the New York office “scripts (and images) for the two games” Brooks was “introducing to San Diego Schools in coming months.” (See id. at 8–9.) Dabney again followed up on December 3, 2010 and indicated he had left Shafer a voicemail as well. (See id. at 8.) Shafer never responded to either follow-up email. 2. Plaintiff‘s next attempted contact with Shafer was on August 15, 2012. Brooks emailed Shafer after “meeting” with her and sent magazine links that “outline[d] the storyboard” of Save One Bank and Stock Picker. (See id. at 57.) The record does not contain any indication of a response from Shafer. 3. On December 21, 2012, Brooks’ publicist, Paris Crosby, emailed Shafer, indicating that Brooks had spoken with her that week and he was sending a summary of marketing information about the two games. (See ECF No. 45-2 at 62–63.) The record does not contain any indication of a response from Shafer, who left Rockstar in September 2013. (See id. at 59.) 4. The next set of communications between Shafer and Brooks took place in November/December 2014 (See ECF No. 45-1 at 2–7; ECF No. 45-3 at 39–51.) The LinkedIn messages, in which Shafer noted she moved to Arizona and was a technical recruiter, |
| included Shafer providing her personal email address, Brooks thanking Shafer for providing contact information, and coordinating logistics to meet up. (See ECF No. 45-1 at 2–7.) Shafer stated that she would “check in with Gordon Hall and see what he‘s up to.” (See id. at 2.) The record does contain any indication of the relevance of this potential check in. 5. The final evidence of communication with Shafer was on December 18, 2014, when Shafer responded to Crosby, “This looks good to me” after reviewing the letter Crosby planned to send to Houser and Hall. (See id. at 65–71.) Shafer additionally noted that “sending this to Sam Houser first is a good idea, however should you not receive a response . . . .” (See id. at 68.) 6. The only email sent to Gordon Hall was sent from Crosby to “gwhall.com” on December 18, 2014. (See ECF No. 45-1 at 61–64.) Shafer shared Hall‘s email in a LinkedIn message to Brooks on December 15, 2014. (See ECF No. 45-3 at 23.) Shafer stated that “Hall used to work for Rockstar . . . [but is] now the Chief Creative Officer at Activision/Blizzard Mobile.” (See id.) Hall left Rockstar in 2011, (see id. at 46), or 2012, (see id. at 5), to work for Activision. (See id.) Thus, Hall had left Rockstar, at minimum two years prior to the first time Brooks attempted contact. The record does not contain any indication of a response from Hall and the email did not contain any copyrighted materials. |
| 7. The only email sent to Sam Houser was sent from Crosby to “rockstargames.com” on December 17, 2014. (See ECF No. 45-1 at 58–60.) Shafer shared Houser‘s email in a LinkedIn message to Brooks on December 15, 2014, and referred to Houser as the “Rockstar CEO.” (See ECF No. 45-3 at 23.) As was the case with Gordon Hall, the record does not contain any indication of a response from Houser, and the email did not contain any copyrighted materials. | |
| ¶ 20: “During these talks and meetings between 2010 and 2015[,] Brooks presented SAVE ONE BANK and STOCK PICKER to Defendants. Brooks provided Defendants with the content, script, proposal, images and details for these games.” | In November 2010, Dabney sent the scripts, images, press release, and background information to Shafer. (See ECF No. 45-1 at 8–11.) Nothing in the documents relied upon, however, indicates that Shafer ever passed this information on to anyone at Rockstar, which did not even create COD, or Activision. |
| ¶ 21: “In 2016[, COD] . . . was released to the public by Defendants. Activision along with Rockstar used the main character, content, scripts, images and details it was given in confidence by Brooks Entertainment to develop this infringing game.” | Nothing in the documents relied upon indicates that anyone at Activision ever received “main character, content, scripts, images [or] details” from Brooks. |
| ¶ 23: “Defendants are using Sean Brooks as its main character in ‘Call of Duty’ [and] this character uses the likeness, persona and name of Plaintiff‘s owner Shon Brooks and further infringes on Plaintiff‘s trademark for SHON BROOKS.” | The images Plaintiff‘s counsel provided of “Agent Brooks,” (see ECF No 45-1 at 22–23), do not bear any resemblance to COD‘s Corporal Brooks. Plaintiff‘s counsel also included a September 3, 2016 article by Screen Rant, “Everything You Need to Know About Call of Duty: Infinite Warfare.” (See ECF No. 45-1 at 76.) That article never used the name “Sean” and said simply that, “[a]ssisting Reyes in the fight [is] . . . |
| Corporal Brooks,” who was listed as the sixth of eight named characters. (See ECF No. 45-2 at 1.)13 | |
| ¶ 41: “Defendants and each of them had access to the Brooks Registered Copyrights and other Brooks Entertainment materials as these items were shared with Defendants from 2010 to 2015[,] when the parties were negotiating an agreement to work together for a licensing deal. The negotiations between the parties intended that Brooks Entertainment was to be the sole creator of the games and that Defendants would be the co-publisher. Defendants and each of them also had access to Brooks Entertainment S.O.B television series[,] which has aired for years on major networks and featured Shon Brooks.” | Nothing in the documents relied upon indicate that anyone at Activision ever received “Brooks Registered Copyrights and other Brooks Entertainment materials.” Further, nothing in the documents relied upon indicate that negotiations were ever taking place, as unreturned emails do constitute a “negotiation.” |
| ¶ 46: “Plaintiff is informed and believes that Defendants’ acts of infringement are willful because, inter alia, the Defendants are sophisticated businesses with full knowledge of the strictures of federal copyright law and the basic requirements for licensing the use of copyrighted content for commercial exploitation. Defendants’ use of Plaintiff‘s copyrighted material is nearly identical to what was presented to it during the negotiations between the parties.” | Nothing in the documents relied upon indicate that COD is “nearly identical to what was presented to it during the negotiations between the parties,” i.e., Plaintiff‘s video games Save One Bank and Stock Picker. |
| ¶ 56: “Plaintiff has discovered that Defendants are using the name, likeness[,] and persona of its CFO Shon Brooks in the Call of Duty Games as the main character. Plaintiff is the owner of the name, | As noted above, see supra page 20, the images Plaintiff‘s counsel provided of “Agent Brooks,” (see ECF No 45-1 at 22–23) do not bear any resemblance to COD‘s Corporal Brooks. |
| likeness[,] and persona of Shon Brooks. Defendants did not obtain the consent of Plaintiff to use the name, likeness[,] and persona of Shon Brooks. (¶ 56.) | As also noted above, see supra page 20, Plaintiff‘s counsel also included a September 3, 2016 article by Screen Rant, “Everything You Need to Know About Call of Duty: Infinite Warfare.” (See ECF No. 45-1 at 76.) That article never used the name “Sean” and said simply that, “[a]ssisting Reyes in the fight [is] . . . Corporal Brooks,” who was listed as the sixth of eight named characters. (See ECF No. 45-2 at 1.) |
| ¶ 20: “Many aspects of the copyrighted script were stolen, just a few of the items which were copied include the following: a) Sean (Shon) Brooks has missiles at disposal; . . . c) Both games are played offshore; d) The main characters of the games both bring thieves to justice; . . . g) Shon Brooks controls character during a single and multiplayer campaign and experience and Sean Brooks controls character during a single and multiplayer campaign and experience.” | Discrepancies from the Screen Rant article include:
|
CONCLUSION
In light of the foregoing, the Court GRANTS Defendants’ Motions for Sanctions. (ECF Nos. 34, 35.) The Court DISMISSES WITH PREJUDICE Plaintiff‘s Complaint (ECF No. 1), DENIES AS MOOT Defendants’ Motions to Dismiss (ECF Nos. 21, 22), DENIES AS MOOT Procopio, Cory, Hargreaves & Savitch LLP‘s Motion to Withdraw as Counsel for Plaintiff Brooks Entertainment, Inc. (ECF No. 26), and ORDERS
Defendants therefore SHALL FILE documentation supporting their reasonable fees and costs on or before August 11, 2022, and Procopio MAY FILE an optional response limited to challenging the fees and costs Defendants claim on or before August 25, 2022. Upon submission of these briefs, the Court will take the fee issue under consideration on the papers without oral argument.
IT IS SO ORDERED.
Dated: July 12, 2022
Honorable Todd W. Robinson
United States District Judge