The US Court of Appeals for the Fifth Circuit affirmed a district court’s denial of attorneys’ fees to the defendant after it prevailed at trial in a copyright infringement suit, concluding that the district court adequately addressed the Supreme Court’s Fogarty factors and did not abuse its discretion. Booker T. Huffman v. Activision Publ’g, Inc., et al., Case No. 22-40072 (5th Cir. Aug. 6, 2025) (Richman, Elrod, Oldham, JJ.) (Oldham, J., dissenting) (nonprecedential).
Booker Huffman, a retired professional wrestler, alleged that Activision’s “Prophet” character in Call of Duty: Black Ops IV infringed his G.I. Bro comic book poster. The case proceeded to trial, and the jury returned a verdict in favor of Activision. Activision then sought attorneys’ fees under 17 U.S.C. § 505, arguing that Huffman’s claims were frivolous, objectively unreasonable, and brought in bad faith, citing a lack of supporting evidence and substantial proof of independent creation. The district court found that the claims involved unsettled areas of law and were neither frivolous nor objectively unreasonable. Applying the factors the Supreme Court outlined in Fogarty v. Fantasy (1994), the district court concluded that an award of attorneys’ fees was not warranted. Activision appealed.
Activision argued that the district court failed to follow Fifth Circuit precedent, which holds that fee awards are “the rule rather than the exception” for prevailing parties in copyright actions. Activision contended that Huffman’s claims were meritless due to a lack of evidence establishing access, striking similarity, or causation. The Fifth Circuit rejected these arguments, emphasizing that there is no automatic entitlement to fees and that the district court’s six-page Fogerty analysis was more thorough than in other cases in which the Fifth Circuit has sustained lower court fee decisions. The Fifth Circuit highlighted that the district court carefully analyzed whether Huffman’s claims were objectively unreasonable, noting that the case implicated areas of unsettled law. The panel emphasized the district court’s denial of Activision’s pretrial motions, the evidence supporting Huffman’s access and similarity, and the district court’s evaluation of the evidentiary record.
The Fifth Circuit also rejected Activision’s argument that the district court abused its discretion by failing to analyze each of the Fogerty factors separately, finding that the judge recited the parties’ arguments for the relevant factors and that it could be inferred that the district court did not find Activision’s arguments persuasive. Throughout its analysis, the Court emphasized that a district court’s attorneys’ fees decision is reviewed only for abuse of discretion and not to relitigate the merits.
Judge Oldham dissented, concluding that Huffman’s claims were “speculation piled on fantasy piled on a pipe dream” and that overwhelming evidence of independent creation made the suit clearly unreasonable. Judge Oldman would have awarded fees to compensate Activision for defending against what he characterized as a baseless $32 million claim and to deter similarly unmeritorious lawsuits in the future.
