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Take-Two Interactive and 2K Games File Declaratory Relief Action Over NBA 2K19 “Cranking” Dance Step
“CRANK THAT” DANCE
More dance step copyright litigation!
Like many games these days, NBA 2K19 allows players to unlock celebratory dances that trigger when a player scores points. One of those dances, which Take-Two calls the “Soul Jah Boi” dance, is an eight second animation of a “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.”
Brandon Sims, a Georgia resident, sent Take-Two several letters alleging that Take-Two’s dance step infringes his copyright interest in an 82-second choreographic work called “Crank That Dance,” which features three dancers performing a variety of dance steps while changing formations throughout.
ONCE AGAIN: COPYRIGHT LAW DOES NOT PROTECT SHORT DANCE STEPS
Take-Two first recites black-letter copyright law in its complaint, i.e., that no one can own a dance step, and that dance steps are “building blocks used to create choreographic works, not choreographic works themselves.” Take-Two cites to the Copyright Compendium and its explanation of how “individual movements or dance steps by themselves are not copyrightable.”
WHO ORIGINATED THE WORK?
Take-Two contends that even if copyright law protected the dance step, Brandon Sims didn’t originate it. Instead, Take-Two alleges that Mr. Sims “copied his dance step from a prior social dance known as the ‘crank’…so named because it resembles riding and cranking the throttle of a motorcycle.” Take-Two, which again, calls its in-game dance step the “Soul Jah Boi” dance, observes that the dance step was previously performed by Soulja Boy in “Crank That (Soulja Boy)” (presumably where Take-Two got the dance step from), and that Mr. Sims’ copyright registration covers choreography performed to the Soulja Boy song. Take-Two further contends that “cranking” was popular as early as the mid 2000s, including in a 2006 music video for the song “It’s Goin’ Down” by Atlanta rapper, Yung Joc.
MUSINGS ON JURISDICTION AND VENUE
Brandon Sims resides in Georgia, while Take-Two, a Delaware corporation, is headquartered in New York. Take-Two’s wholly-owned subsidiary, 2K Games, also a Delaware corporation, has its principal place of business in California with an office in Novato, California (Marin County). This allowed Take-Two and 2K Games to file its declaratory relief action in the Northern District of California.
Why do I find this at all interesting?
In 2018, I was greatly surprised at hearing reports that the Southern District of New York judge had a less-than-favorable initial reaction to Take-Two’s declaratory relief action against Pinkerton, which to me, seemed like a slam-dunk First Amendment case. (Recall in that case, Take-Two had sought a declaration that the First Amendment permitted it to accurately depict Pinkerton agents in a historical context, even if that depiction was unflattering.) Take-Two ended up voluntarily dismissing that case after Pinkerton withdrew its demand for royalties. I wondered, then, if Take-Two had taken its foot off the gas pedal and settled because of the judge’s initial, negative reaction.
Here, I expect the Northern District of California to provide a complete victory to Take-Two, and can’t help but wonder (based purely on my own speculation), if Take-Two is hoping this forum works out better than the last experience in New York.
[Thanks to Docket Navigator for access to the Complaint.]