Author Archives: Benjamin Jaffe

Dance Dance Litigation: Actor Alfonso Ribeiro Moves to Take The Game Out of “The Carlton”

Earlier this week, actor Alfonso Ribeiro filed a claim for copyright infringement, violation of the right of publicity, and unfair competition against Epic Games, Inc. over its use of the dance move commonly known as “The Carlton” (the “Dance Move”) in the popular video game Fortnite: Battle Royale (“Fortnite”).  Ribeiro also filed a similar claim against Take-Two Interactive Software Inc. and certain of its subsidiaries over the use of the Dance Move in the NBA 2K video game series (“NBA 2K”). 

To date, both Fortnite and NBA 2K have generated millions of dollars in revenue via in-game purchases, including character avatar dance moves known as “emotes”.  These emotes have also taken on their own significance in current pop culture, with millions of teens all over the world posting videos of themselves copying the dance moves of their video game avatars on YouTube and other social media sites, often under hashtags referencing the video games (e.g., #fortnitedance or #fortnitevideos), rather than the dance move creators.  The Dance Move, which was first popularized by Ribeiro in an early 90s episode of the TV sitcom “The Fresh Prince of Bel-Air,” was included in Fortnite and NBA 2K as purchasable in-game emotes named the “Fresh” and “So Fresh”, respectively.  The Dance Move was also featured in promotional materials for the games.  None of these uses of the Dance Move gave attribution to Ribeiro or had Ribeiro’s prior permission, which Ribeiro argues was necessary.  Ribeiro’s complaint seeks injunctive relief to prevent the further inclusion and sale of the Dance Move in the games and use in promotional materials, as well as damages, including profits purportedly attributed to the misappropriation and improper use of the Dance Move and Ribeiro’s likeness.        

In the complaints, Ribeiro argues that despite first being aired more than twenty years ago, the Dance Move remains “distinctive, immediately recognizable, and inextricably linked to Ribeiro’s identity, celebrity, and likeness” and that accordingly, “the Dance [Move] has become synonymous with Ribeiro…..[and] is a part of Ribeiro’s identity.”  The complaints also note that Ribeiro filed an initial application with the United States Copyright Office on December 15, 2018 to obtain a copyright registration for the Dance Move.  Ribeiro’s complaint further alleges that the emotes constitute unlawful digital copies and derivative works of the Dance Move as well as a misappropriation of Ribeiro’s identity, and that the way the Dance Move is used creates the false implication that Ribeiro consented to the use of his likeness and endorsed the games.  Additionally, Ribeiro accuses the defendants of intentionally inducing the players of the games to perform and mark the Dance Move with hashtags referencing the games, and argues that this creates an erroneous public association between the Dance Move and the emote within the game.

Ribeiro’s claims are representative of growing pushback over the way in which the video game industry earns revenue and follows on similar claims brought by rapper 2 Milly and Russell Horning a/k/a the “Backpack Kid” over in-game uses of their respective signature dance moves, the “Milly Rock” and the “Floss.”  Many prominent musicians, including Chance the Rapper, have also grown vocal about their dislike of the exploitation of signature dance moves, noting that the songs behind the dance moves should also be included in the games so that the musicians and creatives that inspired the dances can also benefit from the revenues being generated.

If successful, the lawsuits brought by Ribeiro, 2 Milly, and Horning could significantly impact the types of micro-transactions and other in-game purchases that have become the largest revenue source and profit driver for most video game companies, particularly in light of the fact that many of the most popular video games out today, including Fortnite, are otherwise free to play.  A successful claim could also spark a wave of other celebrities and YouTube stars filing claims of their own, which could drastically impact the current profitability levels of the major video game companies. However, Ribeiro’s claims are certainly not a slam dunk.  First, the law is not clear as to whether an individual dance move, as opposed to an elaborate choreography, is actually copyrightable and so this issue is likely to play a large part in determining the outcome of the case.  Another potential setback that Ribeiro may face is the fact that in several public interviews in the past, he has openly stated that the Dance Move was “inspired by” both Courtney Cox’s dance in Bruce Springsteen’s Born to Run video, as well as Eddie Murphy’s “White People Dance”.  That the Dance Move may have been influenced by a prior dance or choreography does not mean it is not sufficiently original to avail itself of copyright protection, but it is another complicating factor that makes this case far from straightforward.  Finally, California’s Right of Publicity Statute protects a person’s name, voice, signature, photograph, and likeness, but not necessarily a person’s gestures or moves.  In determining “likeness” California courts have used the “readily identifiable” test (e.g., whether a person could reasonably determine that the use in issue depicts the plaintiff) to decide whether the right of publicity has been violated.  Thus, Ribeiro will have to show that the Dance Move is so closely intertwined with his persona that it becomes “readily identifiable” with his likeness.  It will be interesting to see how these claims progress and what kind of impact the decisions will have on the entertainment industry as a whole.        

A Closer Look: Senate Passes Music Modernization Act

On September 18, 2018, after months of intense negotiations with various music industry groups and lobbying interests, the United States Senate unanimously approved the Music Modernization Act (now renamed the Orrin G. Hatch Music Modernization Act, “MMA”), clearing what many believe to be the last major hurdle required for the MMA to become the most significant piece of music copyright legislation to be signed into law in almost two decades.  The Senate version of the MMA will now be sent back down to the House for reconsideration (the House approved an earlier version back in April 2018 and is expected to approve the Senate version) before being signed into law by the President.

As with the House version, the Senate version of the MMA combines three main pieces of legislation, which accomplish the following: Continue reading

Copyright Royalty Board Announces Compulsory Mechanical License Rate Hike for Interactive Streaming/Limited Download Services

On January 26, 2018, the United States Copyright Royalty Board (the “CRB”) released its initial determination regarding the royalty rates and terms of use that will apply over the next five years to the compulsory license of musical compositions in connection with the distribution of physical and digital phonorecords (sound recordings not accompanying an audio-visual work).  The highly anticipated ruling is the result of a CRB rate hearing that was initiated by the National Music Publishers’ Association and the Nashville Songwriters Association International and that took place between March and June of last year.  The new rules will become effective as of the date the CRB releases its final determination, which amongst other things, will include the CRB’s rate determinations for physical phonorecord deliveries and permanent downloads not yet addressed in the initial CRB announcement.  The final determination will result in a substantial increase to the mechanical royalty rate to be paid by interactive streaming/limited download services such as Spotify, Apple, Amazon, and Google. Continue reading

The Beatles’ Apple Corps Wins Lawsuit over Ownership Rights to Historic Shea Stadium Concert Footage

On July 26, 2017, the U.S. District Court for the Southern District of New York dismissed a copyright infringement claim brought by Sid Bernstein Presents, LLC (“SBP”) (owner by assignment of the intellectual property rights of the late music and event producer, Sid Bernstein, “Bernstein”) against Apple Corps Limited (a company founded by members of The Beatles) and its subsidiary Subafilms Limited (“Subafilms”), related to the raw, unedited, audiovisual footage (the “Master Tapes”) of The Beatles’ famed 1965 concert at Shea Stadium (the “Concert”).

The facts of the case are as follows:  Bernstein created, produced, and promoted the Concert, which featured performances by The Beatles and several other musical acts.  In this capacity, Bernstein undertook the responsibilities of raising the money for the Concert, renting the stadium, designing and building the stage, hiring the musical acts, hiring security, designing the tickets, and promoting the Concert.  Bernstein also arranged for TV personality Ed Sullivan to introduce The Beatles during the Concert.

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Don’t Spy on Me, ISPs: New Law Rolls Back Internet Privacy Rules

On April 3, 2017, President Trump officially signed into law a controversial new bill that repeals the Internet privacy rules adopted by the Federal Communications Commission (“FCC”) in late 2016 (the “FCC Rules”).  The FCC rules, which were set to go into effect in late 2017, required Internet service providers (“ISPs”), such as Verizon, AT&T, and Comcast, to obtain permission from their customers (i.e., obtain “opt-in” consent) before selling or sharing certain sensitive information about such customers’ Internet usage to third parties, including web browsing history, geo-location data, health, child and financial information, social security numbers, app usage history, and the content of emails and other digital messages.  The FCC Rules also required ISPs to take more substantial measures to protect against, and notify customers of, data breaches.  Under the new law, the FCC is also now prohibited from passing any additional privacy restrictions related to the use of customer data.

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C‐Corp vs. LLC – Tips for Choosing the Right Entity Structure for Your Business

Congratulations!  After months of dreaming about turning your great idea into a real business, you have finally decided to take the plunge and form a company.  After doing some initial research, you have decided to form your company as either a C-Corporation (“C-Corp”) or Limited Liability Company (“LLC”) since both entity structures offer personal liability protection against your company’s debts (meaning creditors of your company are not be able to come after your personal assets for repayment).  However, how do you know which of these two entity structures to choose?

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New York Announces Expansion of Medical Marijuana Program

 

In what many marijuana advocates and patients are viewing as a positive step forward, Governor Cuomo’s administration has announced its plans to adopt several key changes to New York’s medical marijuana program aimed at increasing the number of eligible participants under the program and the ability for such participants to obtain better treatment options and easier access to medical marijuana.

The announcement follows a census report recently published by the New York State Health Department which contained twelve recommendations for improving the program.  Although certain recommendations remain under review, it is expected that all twelve of the Health Department’s recommendations will eventually be adopted by the state, several of which could come into effect as early as October, 2016.  Some of these key changes include: (i) authorizing registered nurse practitioners (rather than just registered physicians) to certify New York residents for medical marijuana use; (ii) allowing for the home delivery of medical marijuana to certified patients; (iii) streamlining manufacturing requirements and broadening the capability for registered organizations to advertise their participation in the program; (iv) increasing the number of brands of medical marijuana products available to patients, as well as potentially adding to the types of forms (i.e., smokeable or other edible varieties) available for administering medical marijuana; (v) expanding the list of qualifying medical conditions eligible under the program and conducting a review as to whether chronic intractable pain should be included in the expanded list of eligible conditions; (vi) registering five additional organizations that are licensed to grow and supply medical marijuana; and (vii) making it easier for practitioners to register with the program and creating a public database of registered practitioners to make it easier for patients to find them.  Although these changes do not address issues related to the high cost of medical marijuana, which for certain patients can run up to $1,000 a month and is not covered by insurance, one additional recommended change was to expand the existing financial hardship-based waiver for the $50 patient and caregiver application fee for registration.  The report also recommended that the state continue to engage in outreach aimed at easing some of the federal restrictions impeding scientific research on marijuana and prohibiting financial transactions and traditional banking relationships in the context of the medical marijuana business.

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