Huffman v. Activision – Re-affirming Broad District-Court Discretion to Deny Attorney’s Fees under 17 U.S.C. § 505

1. Introduction

The Fifth Circuit’s unpublished opinion in Huffman v. Activision Publishing, Inc. (Aug. 6 2025) addresses when a prevailing copyright defendant is – and is not – entitled to recover attorney’s fees under 17 U.S.C. § 505. Plaintiff Booker T. Huffman (the retired wrestler known as “Booker T”) sued several Activision entities, alleging that the “Prophet” character used to market Call of Duty: Black Ops IV infringed his “G.I. Bro” poster. After a jury ruled for Activision on all claims, Activision sought millions of dollars in fees; the Eastern District of Texas denied the request, finding the suit “not objectively unreasonable.” Activision appealed, arguing that in the Fifth Circuit fees are “the rule rather than the exception.” The Court of Appeals – over a sharp dissent – affirmed.

2. Summary of the Judgment

• Standard of review: abuse of discretion.
• Key holding: The district court’s six-page analysis satisfied Fogerty v. Fantasy and Kirtsaeng v. Wiley. Its finding that Huffman’s claims were not objectively unreasonable was not clearly erroneous, so denying fees was permissible.
• Secondary holdings:

The oft-quoted phrase that fees are “the rule rather than the exception” in copyright cases does not create a presumption that must be overcome.
A district court may give substantial weight to objective reasonableness and treat the remaining Fogerty factors (frivolousness, motivation, compensation, deterrence) as intertwined with that inquiry.
Six pages of reasoning – referencing prior Fifth-Circuit fee decisions – comfortably exceeds the minimal explanation required.

3. Analysis

3.1 Precedents Cited and Their Influence

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) – Established the non-exclusive four-factor test (frivolousness, motivation, objective unreasonableness, compensation/deterrence) and rejected automatic fee-shifting.
Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016) – Clarified that “objective reasonableness” deserves “substantial weight,” but is not dispositive.
Positive Black Talk, Creations Unlimited, Bridgmon, Hunn – Fifth-Circuit cases in which very brief district-court reasoning either granting or denying fees was affirmed. The panel used these to show that six pages of analysis is more than enough.
Digital Drilling Data v. Petrolink and Virgin Records v. Thompson – Source of the “rule rather than the exception” language; the panel read these cases as exhortations, not as mandatory directives overriding district-court discretion.

3.2 Court’s Legal Reasoning

Emphasis on Objective Reasonableness. The district court noted:
- Several dispositive motions (12(b)(6) and summary-judgment) were denied, showing the case presented genuine factual and legal questions.
- Unsettled areas of law (CMI under DMCA §1202(a); the “sliding-scale” of access/probative similarity; nexus-to-profits) made plaintiff’s theories colorable.
Non-Frivolous Motivation. Nothing suggested malice or harassment; Huffman was enforcing what he believed was his copyright.
Compensation & Deterrence. Because the suit was not frivolous, awarding fees would chill borderline but good-faith claims and discourage clarification of unsettled law – the opposite of what Fogerty seeks.
Frivolousness Not Alleged. Activision conceded the case was not frivolous; the factor was neutral.
Comparative Analysis with Prior Fifth-Circuit Approvals. The panel showed multiple instances where fee rulings with less reasoning had been upheld, bolstering the district court’s approach.

3.3 Impact of the Decision

1. Clarifies the “Rule Rather Than the Exception.” Future litigants cannot rely on that mantra to claim an entitlement to fees.
2. Elevates the District Court’s View of Reasonableness. The decision underscores that the trial judge – having managed discovery, dispositive motions, and trial – is uniquely positioned to gauge whether a claim was objectively unreasonable.
3. Practical Guidance for Litigants. Defendants should assemble a robust record showing unreasonableness, not just ultimate victory. Plaintiffs should know that losing at trial does not automatically expose them to fee liability.
4. Tension with Other Circuits. Some circuits (e.g., Ninth) more readily grant fees to prevailing defendants to deter weak claims. The Fifth Circuit’s stance may encourage forum shopping where fee exposure is a strategic concern.
5. Influence on Settlement Dynamics. By limiting automatic fee exposure, claimants may be emboldened to test novel theories; conversely, defendants may see fewer early settlements based on fee threats alone.

4. Complex Concepts Simplified

17 U.S.C. § 505. The Copyright Act’s fee-shifting provision: courts may (not must) award “full costs, including reasonable attorney’s fees” to the prevailing party.
Objective Unreasonableness. Would a reasonable copyright lawyer, at the time of filing and throughout litigation, believe the claim/defense had merit? It is judged against existing – and sometimes unsettled – law.
Access & Striking Similarity. Two routes to infer copying:
- Access – Defendant had a realistic opportunity to encounter the plaintiff’s work.
- Striking similarity – Works are so alike that independent creation is implausible.
Independent Creation Defense. Even if works are similar, proving the defendant created its work without seeing the plaintiff’s defeats infringement.
Fogerty Factors. A four-part, non-exclusive test guiding § 505 awards: frivolousness, motivation, objective unreasonableness, and the need for compensation/deterrence.
Abuse of Discretion Review. Appellate courts overturn only if the lower court applied the wrong legal standard or made clearly erroneous findings – a highly deferential posture.

5. Conclusion

Huffman v. Activision cements the Fifth Circuit’s view that although fee awards to prevailing copyright parties are common, they are never automatic. District judges retain broad discretion – bolstered by deferential review – to deny fees when the losing side’s position, while unsuccessful, is not objectively unreasonable and implicates unresolved legal questions. Practitioners must therefore treat § 505 fee motions as fact-intensive mini-trials on reasonableness, not as mere post-victory bookkeeping. Strategically, the decision recalibrates risk assessment for both plaintiffs and defendants in copyright litigation across the Fifth Circuit, signaling that good-faith litigation over uncertain doctrinal terrain is not per se sanctionable through fee-shifting.