Humpston v. Black et al

Case No. 2:20-cv-10018

United States District Court for the Central District of California

Wesley Humpston has sued actor Jack Black, skateboarder Tony Hawk, and skateboarding company The Berrics, LLC for copyright infringement of his “BigFoot Graphic” design on skateboards signed by Jack Black in social media posts used to promote Activision’s Tony Hawk’s Pro Skater 1+2 video game.

Humpston is a graphic artist who started designing art for the bottom of skateboards in 1975 and describes himself as “The Godfather of Skateboard Art.”

In his complaint, Humpston says that he obtained a copyright for the “BigFoot Graphic” in 2007 with a date of creation of 1979, has not licensed its use since 2010, and currently has no licensing agreements for the design’s use by other parties.

Humpston’s complaint includes screenshots of social media posts that he believes were part of a coordinated media campaign to promote Tony Hawk’s Pro Skater 1+2. The posts include a skateboard with a graphic that Humpston alleges is a “clear imitation” of his “BigFoot Graphic” and is labeled “BigFoot II” on the graphic itself. In addition to his copyright infringement claim, Humpston alleges that the defendants have been unjustly enriched through their allegedly infringing use of his “BigFoot Graphic” to promote and increase sales of Tony Hawk’s Pro Skater 1+2. He claims that he is entitled to profits both directly and indirectly attributable to the alleged infringement of the “BigFoot Graphic.” Plaintiff also alleges violation of California law against unfair competition, arguing that the defendants obtained financial benefits while depriving him of compensation.

One issue that will come into play is that, because the copyright registration was not pursued within five years of first publication of the work, the information in the copyright registration will not enjoy the statutory presumption of validity otherwise available under 17 U.S.C. § 410. As a result, the evidentiary weight of the certificate of a registration will be within the discretion of the court in this case, and Humpston might be required to provide additional proof of the rights claimed in the registration certificate.

Lastly, the inclusion of Jack Black in this case (much less as the first named defendant) appears specious, and primarily intended for publicity and leverage, as it is unclear what his participation was in any alleged infringement other than acting in accordance with whatever marketing agreement he has with the makers of the video game.

We will follow up if there are any major developments, but, if Humpston did create the original work, we predict this case will likely settle, e.g., because this case does not involve the actual video game, but only its marketing efforts.