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.