Dance – Patent Arcade

Aug

2020

Atlanta Rapper Claims “Soul Jah Boi” Dance in NBA 2K19 Infringes His Copyright

Take-Two Interactive Software, Inc. et. al v. Sims
Case No. 4:20-CV-04441
United States District Court for the Northern District of California
Filed July 2, 2020

Take-Two Interactive Software, Inc. (“Take-Two”) filed a lawsuit on July 2, 2020 against an Atlanta rapper named Brandon Sims (who performs as “Lil Playboii” and has approximately 3,000 YouTube subscribers) seeking a declaratory judgment of non-infringement. Sims claims that a dance step emote in Take-Two’s NBA 2K19 infringes a copyright for “Crank That Dance” the Sims claims to own. Take-Two says that Sims has threatened it with an infringement claim in multiple letters and is seeking fees from Take-Two, so Take-Two is preemptively bringing suit in a declaratory judgment action.

The dance step in question (“Take-Two Dance Step”) in the NBA 2K19 game is a celebratory animation that may be triggered when a player scores. Take-Two characterizes the Take-Two Dance Step as “consisting of the basketball player hopping sideways on straight legs (one on the ground and one in the air), while raising his arms to eye level in the direction away from the hop, then repeating the movement on the other foot.” Take-Two characterizes the dance step from “Crank That Dance” (the “Sims Dance Step”) performed by the three dancers in the 82 second video as “stand[ing] in a straddle position with their legs bent as if riding a motorcycle, with their arms at chest level, pumping their hands like they are cranking the throttle of the motorcycle.”

Take-Two’s central claim is that dance steps are not protected by copyright law. The U.S. Copyright Office’s Compendium of U.S. Copyright Office Practices explains that “[i]ndividual movements or dance steps by themselves are not copyrightable,” although a “composition and arrangement of ‘a related series of dance movements and patterns organized into a coherent whole’” is a choreographic work and may be copyrightable. Take-Two indicates that Sims’ claim is based on only the Sims Dance Step, rather than the longer, 82 second dance video.

Take-Two further argues that the Sims Dance Step from “Crank That Dance” is not copyrightable because it believes that Sims did not independently create it. Take-Two alleges that Sims copied the dance step from both Soulja Boy’s 2007 “Crank That” (which was once number one on the U.S. Billboard Hot 100), and Yung Joc’s 2006 “It’s Goin’ Down.” Take-Two characterizes the “crank” dance step in Soulja Boy’s “Crank That” as “resembl[ing] riding and cranking the throttle of a motorcycle,” and the “crank” dance step in Yung Joc’s “It’s Goin’ Down” as including “leaning back, holding out their arms in front of their chests, and bending their elbows slightly as if they are grabbing onto handlebars . . . and revving the throttle.” The Take-Two Dance Step is titled “Soul Jah Boi” in the NBA 2K19 game.

Take-Two lastly argues that even if the Sims Dance Step is copyrightable, the two dance steps are different and the Take-Two Dance Step does not infringe.

Take-Two seeks a declaratory judgment of non-infringement, reasonable attorney’s fees, and any other relief the Court deems just and proper.

Sims filed a motion to dismiss on July 28, 2020 disputing Take-Two’s claims. Sims claims that the letters exchanged with Take-Two “do not threaten litigation or immediate action,” but “notified Take-Two of . . . [Sim’s] rights and invited negotiation of a licensing agreement.” Sims also argues that the circumstances of the suit are inappropriate for declaratory judgment, as well as arguments over personal jurisdiction and venue.

We will provide updates on interesting developments over the course of the litigation.

Jun

2020

Fortnite “Running Man” Emote Lawsuit Against Epic Games Dismissed

Brantley et al v. Epic Games, Inc. et al
Case No.: 8:19-cv-594-PWG
United States District Court for the District of Maryland
Filed February 25, 2019

A 2019 suit we previously covered relating to Fortnite’s “Running Man” dance emote has been dismissed. The case, brought by former University of Maryland basketball players against Fortnite developer Epic Games, was for trademark infringement, trademark dilution, invasion of the right of privacy/publicity, unfair competition, unjust enrichment, and false designation of origin.

The plaintiffs, former University of Maryland basketball players, became famous online through videos of the plaintiffs doing a dance referred to as the “Running Man” at basketball games. To that end, the players asserted that the dance had “become synonymous with them.” Initially, the plaintiffs made claims of copyright infringement, but dropped those in favor of trademark infringement claims after Fourth Estate Public Benefit Corp. v. Wall-Street.com held that a plaintiff must register (and thereby receive Copyright Office approval of) their copyright before being able to sue for infringement of that copyright.

This is because, if the “Running Man” were a choreographic work, it would be governed by the Copyright Act and the plaintiffs would not be able to sue for copyright infringement because the “Running Man” has not been registered and approved by the Copyright Office. In an attempt to avoid dismissal, the plaintiffs alleged trademark infringement rather than copyright infringement, which is not subject to the Fourth Estate requirements. Section 102(a) of the Copyright Act specifically governs choreographic works, whereas other portions of the Copyright Act govern other types of works (such as the “general subject matter” of copyright). The U.S. Copyright Office’s Compendium of U.S. Copyright Practices distinguishes choreographic works “from de minimis movements, dance steps, social dances, and simple routines, which are not copyrightable” but also says that “[t]he dividing line between copyrightable choreographic and uncopyrightable dance is a continuum, rather than a bright line.” The Court did not define where on the continuum the “Running Man” falls, instead holding that, because “the scope of copyright preemption is broader than that of copyright protection, it is sufficient here to find that the Running Man is within the ‘general subject matter’ of copyright under a choreographic work.”

The Court also held that the Copyright Act preempted the plaintiffs’ claims of common law privacy violation, unfair competition, and unjust enrichment based on misappropriation of an original work. The allegations of unfair competition and false designation of origin under the Lanham Act were dismissed for similar reasons. Plaintiffs’ trademark infringement and trademark dilution claims were also dismissed because they failed to allege that the “Running Man” was a trademark that identified a good or service.

The Court, in a conclusion, characterized the case:

“Plaintiffs seek to place the same square peg into eight round holes in search of a cause of action against Epic Games for its use of the Running Man dance in its game Fortnite. But Plaintiffs’ claims that Epic Games copied the dance do not support any of their theories.”

Mar

2020

False Start for Paparazzi in Copyright Suit

Xclusive-Lee Inc. v. Hadid,
Case Number 1:19-cv-00520,
United States District Court for the Eastern District of New York

A copyright infringement lawsuit against supermodel Gigi Hadid by the paparazzi group Xclusive-Lee Inc. was recently dismissed because the plaintiff failed to formally register a copyright for the allegedly infringed photograph.

Hadid was sued by Xclusive-Lee Inc. (“Xclusive”) for posting a photo on Instagram which was allegedly originally taken by a member of Xclusive’s paparazzi. The suit alleged that Hadid posted the photograph to Instagram without a license or permission from Xclusive.

Hadid posted the allegedly infringing photo photo online in October 2018, but subsequently deleted the photo. Xclusive’s complaint against Hadid alleged that she had used the photo without permission and had copied it to her Instagram page.

The District Court granted Hadid’s motion to dismiss the suit after it was determined that Xclusive had applied for, but had not actually been granted, a copyright registration for the photo. According to the Court, an application for a copyright alone is not enough to meet the Supreme Court standard set forth in Fourth Estate Public Benefit Corp. v. Wall-Street.com, 139 S.Ct. 881 (2019), which states that “copyright owners can’t sue for infringement until the work at issue is formally registered by the U.S. Copyright Office.” Xclusive was unsuccessful in arguing that, because Fourth Estate was decided after Xclusive filed its complaint, Fourth Estate should not apply to the case.

This case is similar to the many cases filed against Epic Games, Inc. relating to in-game dances in the popular video game Fortnite. Like Xclusive’s case, the many Fortnite dance lawsuits were dismissed because the plaintiffs failed to register their copyright. In the case of Fortnite, it appears that the various plaintiffs plan to refile suits if and when they receive copyright protection for their dances. It is unclear whether Xclusive has similar plans.

Dec

2019

Running Man Stars Suing Epic Games for Fortnite Dance

Brantley et al. v. Epic Games, Inc. et al.,
Civil Action No. 8:19-cv-00594-PWG
United States District Court for the District of Maryland
Filed February 25, 2019

Two former college basketball athletes, Jaylen Brantley and Jared Nickens, are suing Epic Games for the use of their signature dance The Running Man. Epic responded to the suit by filing a Motion to Dismiss.

Brantley and Nickens claim they started a “viral craze” when they performed the dance on “The Ellen DeGeneres Show” in 2016. They assert Epic is attempting to profit from their fame and creativity by allowing Fortnite players to virtually perform their dance.

Brantley and Nickens’ Complaint, filed on February 25, 2019, alleges four causes of action for relief: infringement of copyright, contributory infringement of copyright, violation of publicity rights, and unfair competition.

This case is an interesting twist on many of the Fortnite-related dance lawsuits we’ve seen in recent months because it argues that Epic infringes a trademark, rather than a copyright. The Supreme Court’s decision in Fourth Estate Public Benefit Corp v. Wall-Street.com held that copyright owners cannot file an infringement lawsuit until the Copyright Office has acted on their application to register the copyright. In response to this decision, many individuals that had filed Fortnite-dance-related lawsuits against Epic dropped their suits, indicating that they would refile at a later time. Brantley and Nickens instead dropped their copyright infringement claims and replaced those claims with trademark infringement claims. The amended complaint thus includes claims for invasion of the right to privacy, unfair competition, unjust enrichment, trademark infringement, and false designation.

Epic has moved to dismiss Brantley and Nickens’ case, arguing that their trademark claims are preempted by the Copyright Act. Specifically, Epic argues that, because a “dance is copyrightable subject matter,” the claims for trademark infringement in Brantley and Nickens’ lawsuit are improperly trying to seek relief on rights that are properly protected by copyright law, not trademark law. Epic did not cite a case supporting its proposition that dances cannot be trademarked. Brantley and Nickens responded to this argument by stating that the Running Man is simply a dance and not a “choreographic work protectable under the Copyright Act.”

In its Motion to Dismiss, Epic Games also asserts that the First Amendment bars Brantley and Nickens’ requested relief because the use of the Running Man dance is a form of artistic expression. In response, Plaintiffs state that the Running Man dance has no artistic relevance to Fortnite in the context of the video game and “is only included to make money.”

Brantley and Nickens have further asserted that the existence of the Running Man dance in the game has led consumers to wonder if Plaintiffs are involved in the creation of Fortnite and whether Epic created the dance themselves.

We will continue to update this case as new information becomes available.

Jan

2019

Baker v. Epic Games

Baker v. Epic Games, Inc.
United States District Court for the Central District of California
Filed January 23, 2019, Case: 2:19-cv-00505

On January 23, 2019, James Baker, a.k.a. BlocBoy JB was the latest person to file a lawsuit against Epic games over Fortnite’s dance emotes. BlocBoy JB created the dance move “Shoot” where the dancer kicks their leg forward and moves their arm in a stabbing motion in synchronization. The allegedly infringing dance emote in Fortnite is called “Hype.” The same law firm representing the other dance plaintiffs is also representing BlocBoy JB. The complaint is relatively similar to the other complaints, only minor differences relating to specific facts about to BlocBoy JB.

BlocBoy JB is going to face the same hurdles as the other dance plaintiffs. Copyright protection only extends to choreographed dances like a ballet, but not to short dances which other people can easily replicate. BlocBoy JB will need to show that his dance is a choreographed worked like a ballet. Also, just like the other complaints, it is unclear if BlocBoy JB can establish a right of publicity claim. It is unsettled if a dance move can be associated with a person’s identity. To read a more in-depth analysis click here.

We will continue to monitor these cases and provide updates when available.

Atlanta Rapper Claims “Soul Jah Boi” Dance in NBA 2K19 Infringes His Copyright

Atlanta Rapper Claims “Soul Jah Boi” Dance in NBA 2K19 Infringes His Copyright

Fortnite “Running Man” Emote Lawsuit Against Epic Games Dismissed

Fortnite “Running Man” Emote Lawsuit Against Epic Games Dismissed

False Start for Paparazzi in Copyright Suit

False Start for Paparazzi in Copyright Suit

Running Man Stars Suing Epic Games for Fortnite Dance

Running Man Stars Suing Epic Games for Fortnite Dance

Baker v. Epic Games

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