Ferguson v. Epic Games, Inc.
United States District Court for the Central District of California
Filed Dec. 5, 2018, CACD-2-18-cv-10110
Ferguson v. Take-Two Interactive Software, Inc.
United States District Court for the Central District of California
Filed Dec. 17, 2018, CACD-2:18-cv-10425
Ribeiro v. Epic Games, Inc.
United States District Court for the Central District of California
Filed Dec. 17, 2018, CACD-2:18-cv-10412
Ribeiro v. Take-Two Interactive Software, Inc.
United States District Court for the Central District of California
Filed Dec. 17, 2018, CACD-2:18-cv-10417
Epic Games and Take-Two Interactive have filed motions to dismiss the complaints of the rapper 2 Milly and Alfonso Ribeiro. Back in December 2018, 2 Milly filed complaints against Epic and Take-Two for using his dance, the “Milly Rock,” without permission. 2 Milly alleged the video game companies had infringed his copyright and right of publicity. Shortly after 2 Milly filed his complaint, several other people, including Alfonso Ribeiro, also filed complaints against the video game companies. For a more in-depth analysis, click here.
Epic and Take-Two argue the plaintiffs’ dances are simple dance moves which cannot be copyrighted. The Copyright Act affords protection to choreographic works, but the work has to be more than a simple dance move. For example, touchdown celebrations would be a simple dance move . On February 14, 2019, the Copyright Office refused registration for Ribeiro’s “Carlton Dance” on the basis the dance was a simple dance move. Also, the Copyright Office questioned if Riberio is the true and sole author of the dance since it was created for a TV show, possibly under a work made for hire agreement. As of this writing, the Copyright Office has not made a determination on 2 Milly’s dance or any of the other dances at issue.
The refusal does not automatically end the litigation against Epic or Take-Two. Ribeiro could appeal the rejection since the courts have the final word on what is copyrightable. However, more likely is that the issue of whether Ribeiro’s dance is copyrightable in the first place will now be decided by the court in this case. A copyright registration would have given him a presumption of validity of the copyright in his dance, but with the registration, he must now prove that anew in court. Thus, the Copyright Office’s decision means that the plaintiffs will inevitably have a more difficult time proving they own a protectable copyrighted work. Lastly, we note that the court also needs to weigh in on the right of publicity claim asserted by the plaintiffs.
Epic and Take-Two argue that copyright law preempts the right of publicity claims. Even if there is no preemption, the video game companies rely on Rogers v. Grimaldi to argue the dances are artistically relevant to the games and the use is not misleading. 875 F.2d 994 (2d Cir. 1989). Furthermore, the companies claim the dance emotes only replicate physical movements and do not incorporate the plaintiffs’ likenesses. As discussed in our previous post, it is unsettled law if a person’s likeness can be attached to a movement. A person likeness can extend to a distinctive voice or a well-known catchphrase. However, extending protection to a dance might have far-reaching implications.
These cases are still ongoing, and we will provide updates when available.