Alfonso Ribeiro v. Epic Games, Inc.

Filing 1

COMPLAINT Receipt No: 0973-22904596 - Fee: $400, filed by Plaintiff Alfonso Ribeiro. (Attorney Carolynn Kyungwon Beck added to party Alfonso Ribeiro(pty:pla))(Beck, Carolynn)

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 1 of 24 Page ID #:1

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Pierce Bainbridge Beck Price & Hecht LLP
Carolynn Kyungwon Beck (SBN 264703)
[e-mail]
Daniel Dubin (SBN 313235)
[e-mail]
600 Wilshire Boulevard, Suite 500
Los Angeles, California 90017-3212
[phone]
Attorneys for
Plaintiff Alfonso Ribeiro

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THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

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Case No. 2:18-cv-10412

Alfonso Ribeiro, an
individual,

Complaint

Plaintiff,
v.
Epic Games, Inc., a North
Carolina corporation; and
Does 1 through 50, inclusive,
Defendants.

1. Direct Infringement of
Copyright
2. Contributory Infringement
of Copyright
3. Violation of the Right of
Publicity under California
Common Law;
4. Violation of the Right of
Publicity under Cal. Civ.
Code § 3344;
5. Unfair Competition under
Cal. Bus. & Prof. Code §
17200, et seq.;
6. Unfair Competition under
15 U.S.C. § 1125(a)
Demand for Jury Trial

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Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 2 of 24 Page ID #:2

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Plaintiff Alfonso Ribeiro, (“Plaintiff” or “Ribeiro”), by and through

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his undersigned counsel, asserts the following claims against Defendant

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Epic Games, Inc. (“Epic”) and Does 1 through 50 (collectively referred

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to as “Defendants”), and alleges as follows:

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I.

OVERVIEW

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Through its unauthorized use of Ribeiro’s highly popular

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signature dance (“The Dance” or “Dance”) in its smash-hit, violent video

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game, Fortnite Battle Royale (“Fortnite”), Epic has unfairly profited

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from exploiting Ribeiro’s protected creative expression and likeness and

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celebrity without his consent or authorization.

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Ribeiro is an internationally famous Hollywood star, known

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for his starring role as Carlton Banks from the hit television series The

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Fresh Prince of Bel-Air and as host of America’s Funniest Home Videos.

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Ribeiro created his highly recognizable “Dance,” that has also been

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referred to by the public as “The Carlton Dance,” which exploded in

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popularity and became highly recognizable as Ribeiro’s signature dance

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internationally. The Dance is now inextricably linked to Ribeiro and

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has continued to be a part of his celebrity persona.

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Defendants capitalized on Alfonso Ribeiro’s celebrity and

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popularity by selling The Dance as an in-game purchase in Fortnite

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under the name “Fresh,” which players can buy to customize their

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avatars for use in the game. Although misleadingly labeled in Fortnite,

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the emote, as they are called, was immediately recognized by players

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and media worldwide as Ribeiro’s The Dance. Epic did not seek, much

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less obtain, Ribeiro’s consent to use, display, reproduce, sell, or creative

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a derivate work based upon The Dance or Ribiero’s likeness. Epic did

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not seek, much less obtain, Ribeiro’s consent to use, display, reproduce,

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Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 3 of 24 Page ID #:3

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sell, or creative a derivate work based upon The Dance or Ribeiro’s

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likeness.

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Since being released in or around September 2017, Fortnite

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has become among the most popular video games ever with sales far in

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excess of $1 billion. Indeed, Fortnite made approximately $318 million

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in May 2018 alone, the “biggest month ever for a video game.” As a free-

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to-play game, Fortnite derives its sales through in-game purchases.

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Epic cannot profit from Ribeiro’s hard-earned fame by its intentional

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misappropriation of Ribeiro’s original content and likeness. Epic cannot

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increase the value of its main product by faking endorsements by

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celebrities. Ribeiro seeks injunctive relief and damages, including, but

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not limited to, Epic’s profits attributed to its misappropriation of The

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Dance and Ribeiro’s likeness.

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II. THE PARTIES

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Ribeiro resides in Los Angeles, California.

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Epic is a North Carolina business corporation with its

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principal place of business at 620 Crossroads Boulevard, Cary, NC

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27518. Epic is the creator and developer of the Fortnite video game

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franchise, which was first released in July of 2017.

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The true names and identities of the defendants herein sued

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as Does 1 through 50, inclusive, are unknown to Ferguson, who

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therefore sues those defendants by such fictitious names. When the

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true names of those defendants have been ascertained, Ferguson will

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amend this complaint accordingly. Each of the defendants aided and

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abetted and is responsible in some manner for the occurrences herein

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alleged, and Ferguson’s injuries were proximately caused thereby.

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Complaint

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At all times herein mentioned, each of the defendants was

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acting as an agent, servant, employee or representative of defendants,

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and, in doing the things alleged in this Complaint, was acting within

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the course and scope of that agency, service, employment, or joint

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venture.

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III. SUBJECT MATTER JURISDICTION AND

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VENUE

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The Court has subject matter jurisdiction over this action

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pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332

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(diversity), and 28 U.S.C. § 1367 (supplemental jurisdiction).

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Venue is proper in this District under A) 28 U.S.C. §

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1391(b)(2) (federal question jurisdiction), because a substantial part of

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the events or omissions giving rise to the claim occurred in this District;

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and B) 28 U.S.C. §§ 1391(b)(1) and (c) (personal jurisdiction), because

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all defendants are subject to personal jurisdiction in this State and at

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least one in this District.

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IV. FACTUAL BACKGROUND

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Ribeiro and the Creation of The Dance

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Raised in the New York City borough of the Bronx, Ribeiro

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has been acting since the age of eight, gaining notoriety and prominence

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in particular for his dancing. Ribeiro starred in the Broadway musical

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The Tap Dance Kid in 1983, released a single called Alfonso Ribeiro –

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Dance Baby in 1984, appeared as a dancer in a Pepsi commercial with

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Michael Jackson in 1984, and authored a dance instruction book in 1985

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called Alfonso’s Breakin’ & Poppin’ Book.

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In 1991, Ribeiro created The Dance and first performed it on

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The Fresh Prince of Bel-Air during the episode Will’s Christmas Show.

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Complaint

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Twenty-seven years later, The Dance remains distinctive, immediately

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recognizable, and inextricably linked to Ribeiro’s identity, celebrity, and

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likeness.

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Since its conception in 1991, The Dance has maintained its

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popularity. Ribeiro continues to perform The Dance, even inserting it

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during his famous performance in 2014 as part of his victorious run on

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the hit television show Dancing with the Stars. Ribeiro is constantly

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inundated with requests to perform The Dance; he has performed it on

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numerous occasions at the behest of both the public1 and celebrities.

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Indeed, in 2016, the recording artist Justin Timberlake and NBA

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superstar Stephen Curry, performed The Dance, alongside Ribeiro, at

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the popular American Century Celebrity Golf Tournament.2

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A 2013 video by the BBC including Will Smith and his son

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Jaden Smith, Jeffrey Allen Townes (DJ Jazzy Jeff), and Ribeiro

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performing The Dance has garnered over sixty-nine million views on

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YouTube.3

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The Dance has become synonymous with Ribeiro, who is

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unanimously credited with creating The Dance. Ribeiro has also been

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interviewed several times about the creation of The Dance and how to

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properly perform it.

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identity and The Dance’s unique movements readily evoke a connection

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to Ribeiro.

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Accordingly, The Dance is a part of Ribeiro’s

BlackAmericaWeb.com, Alfonso Ribeiro: “Please Stop Asking Me To Dance”,
https://blackamericaweb.com/2013/08/13/alfonso-ribeiro-please-stop-asking-me-todance (quoting Ribeiro as stating “[P]eople walk up to me and they say ‘Do the
dance’”).
2 NBC Sports, Stephen Curry and Justin Timberlake are Shown by Alfonso Ribeiro
how to Properly do “the Carlton” That Ribeiro made famous on “The Fresh Prince of
Bel-Air,” NBC, https://www.nbcsports.com/video/alfonso-ribeiro-justin-timberlakestephen-curry-do-carlton.
3 The video can be found at https://www.youtube.com/watch?v=ZwS14TiO7Pk.
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Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 6 of 24 Page ID #:6

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Fortnite: The Most Popular Video Game Ever

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Prior to releasing Fortnite, which has become among the

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most popular and successful video games ever, Epic developed two

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popular video game franchises:

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releasing the first Gears of War game in 2006 Epic released several

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subsequent Gears of War video games, and the franchise has made over

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$1 billion in total sales.

Unreal and Gears of War.

Since

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In or around 2011, following the release of the third Gears

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of War installment, Fortnite began from an Epic internal video game

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“hackathon,” a gathering of Epic developers to brainstorm ideas and

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create games in a short period. Although the Fortnite game was not

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developed during the hackathon, the idea to merge building games (i.e.,

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Minecraft) and shooter games (i.e., Gears of War or Call of Duty)

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emerged during the hackathon.

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In or around July 2017, Epic released the initial version of

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Fortnite as a paid early-access video game in the “Battle Royale” genre.

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However, by September 2017, after PlayerUnknown’s Battlegrounds—

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a game which occupied the same genre as Fortnite—became a

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worldwide success, Epic released Fortnite Battle Royale, a free-to-play

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third-person shooting game on the Windows, macOS, PlayStation 4, and

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Xbox One platforms. Epic subsequently released Fortnite on the iOS,

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Nintendo, and Android platforms on April 2, 2018, June 12, 2018, and

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August 9, 2018, respectively.

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Similar

to

PlayerUnknown’s

Battlegrounds,

Fortnite

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utilizes the battle royale genre where a large number of players, alone,

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in pairs, or groups, compete to be the last player or group alive. Indeed,

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similar to Battlegrounds and Gears of War, Fortnite features the use of

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Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 7 of 24 Page ID #:7

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weapons and violence, that players use to eliminate the competition by

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attacking and shooting them.

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As a free-to-play video game, Epic allows players to

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download and play Fortnite for free. Epic’s revenue from Fortnite comes

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from in-game transactions where players can purchase virtual

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currency, called “Vinderbucks” or “V-Bucks.” The players in turn use

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V-Bucks via the “Item Shop” to purchase customizations for their in-

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game avatars, including new characters, pickaxe modifications, glider

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skins, clothing, and emotes (dances or movements). Fortnite also sells

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“Battle Passes” or additional levels that allow you to unlock skins,

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gliders, and emotes unique to that Pass. Fortnite offers four pricing

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levels for purchasing V-Bucks (in U.S. Dollars):

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1) 1,000 V-Bucks for $9.99;

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2) 2,500 (+300 Bonus) V-Bucks for $24.99;

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3) 6,000 (+1,500 Bonus) V-Bucks for $59.99; or

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4) 10,000 (+3,500 Bonus) V-Bucks for $99.99.

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There are four types of emotes: common emotes, uncommon

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emotes, rare emotes, and epic emotes. The rarer the emote, the more

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expensive or harder it is to obtain. Uncommon emotes cost 200 V-

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Bucks. Rare emotes cost 500 V-Bucks. And Epic emotes cost 800 V-

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Bucks.

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To start, Fortnite provides each player with the “Dance

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Moves” emote, a common emote, for no compensation. Players can then

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obtain other emotes by purchasing and playing additional levels in

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Battle Passes (950 V-Bucks each) that come with emotes unique to that

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Pass, or by purchasing certain emotes directly with V-Bucks. On some

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occasions, Fortnite sells Battle Pass emotes directly, without requiring

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the player to purchase the Battle Pass.
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Complaint

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Emotes are incredibly popular and are fundamental to

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Fortnite’s success. Players purchase emotes, alongside clothing and

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skins, to personalize their Fortnite experience.

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become popular outside Fortnite. Professional athletes in soccer and

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other sports have based their celebrations on Fortnite emotes. Young

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adults, teenagers, and kids also post videos of themselves on YouTube

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and social media performing emotes under various hashtags, including

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#fortnitedance or #fortnitevideos. Upon information and belief, Epic

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intentionally induces others to perform these dances and mark them

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with those hashtags, which give attribution to and endorse Fortnite the

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game.

Emotes have also

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Upon information and belief, Epic creates emotes by copying

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and coding dances and movements directly from popular videos, movies,

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and television shows without consent. Epic does so by coding still

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frames of the source material.

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Epic has consistently sought to exploit African-American

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talent, in particular in Fortnite, by copying their dances and movements

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and sell them through emotes.

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movements of numerous African-American performers, including,

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among others, the dance from the 2004 Snoop Dogg music video, “Drop

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It Like It’s Hot” (named the “Tidy” emote), 2 Milly’s “Milly Rock” dance

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(named the “Swipe It” emote), the dance performed by Will Smith on

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the television show The Fresh Prince of Bel-Air (named the

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“Rambunctious” emote), the dance in Marlon Webb’s popular “Band of

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the Bold” video (named the “Best Mates” emote), Donald Faison’s

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signature dance seen on the NBC television show Scrubs (named the

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“Dance Moves” emote), and, most pertinent here, Alfonso Ribeiro’s The

Epic has copied the dances and

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Complaint

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Dance.

Upon information and belief, Epic did not seek consent or

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authorization to use any of these movements or dances.

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Soon after its release, Fortnite became an international

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phenomenon. The game eclipsed 10 million players merely two weeks

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after its release; 125 million players by July 2018. In November 2018,

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Bloomberg announced that Fortnite had 200 million player accounts

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across all platforms.

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Fortnite’s popularity has translated into record in-game

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sales for Epic. Analysts have estimated that since its release, Fortnite

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has generated between $1 billion to $2 billion in revenue through in-

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game purchases such as emotes. In May 2018, Fortnite broke its own

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record by generating approximately $318 million in revenue, the biggest

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month ever for a video game. In fact, nearly 80 million people played

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Fortnite in August 2018. Because of Fortnite’s success, Epic’s estimated

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valuation rose from about $825 million to about $5 billion. Bloomberg

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estimates that Epic’s valuation could grow to $8.5 billion by 2018’s end.

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Upon information and belief, Epic will likely continue

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adding popular emotes to Fortnite without the artists’ or creators’

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consent or approval to attract more players and add to its quickly-

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growing revenue.

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Fortnite’s Unauthorized Use of The Dance

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On January 2, 2018, Fortnite released the Fresh emote into

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its Item Shop. Players could purchase the Fresh emote for 800 V-Bucks.

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The Fresh emote is identical to Ribeiro’s The Dance.

If

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obtained or purchased, the Fortnite player’s avatar can perform The

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Dance during Fortnite gameplay.

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worldwide was immediate recognition of the emote as embodying The

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Dance and, in turn, Ribeiro. Indeed, by naming the emote “Fresh,” Epic

The reaction from many players

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Complaint

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intentionally induced a direct connection between the in-game purchase

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and the show where The Dance started, The Fresh Prince of Bel-Air.

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That connection implied an endorsement of that in-game purchase by

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Ribeiro.

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Epic developed the Fresh emote to intentionally mimic
Ribeiro performing The Dance.
Epic did not seek to obtain Ribeiro’s authorization or consent
for its use of his likeness and The Dance for the Fresh emote.

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Moreover, Ribeiro did not give Epic express or implied

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consent for its use of his likeness and The Dance for the Fresh emote.

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Epic also did not compensate Ribeiro for its use of his likeness and The

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Dance for the Fresh emote.

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Upon information and belief, Epic added the Fresh emote to

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intentionally exploit the popularity of Ribeiro and The Dance without

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providing Ribeiro any form of compensation.

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Epic profited from its improper misappropriation of The

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Dance and Ribeiro’s likeness by, inter alia: 1) selling the infringing

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Fresh emote directly to players; 2) advertising the Fresh emote to

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attract additional players, including Ribeiro’s fans or those persons

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familiar with The Dance to play Fortnite and make in-game purchases;

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3) using Ribeiro’s fame to stay relevant to its current players to

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incentivize those players to continue playing Fortnite; 4) impliedly

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representing that Ribeiro consented to Epic’s use of his likeness; 5)

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intentionally causing the erroneous public association between the

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Fresh and The Dance; 6) creating the false impression that Ribeiro

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endorsed Fortnite; and 7) inducing and/or contributing to the

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performance and misattribution of The Dance by others.

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Complaint

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Upon information and belief, Epic uses The Dance, and other

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dances, to create the false impression that Epic started these dances

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and crazes or that the performer who created them is endorsing the

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game.

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performance and false attribution of The Dance. Fortnite Players have

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posted thousands of videos of themselves performing the “Fresh” emote

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with the hashtag, #fortnitedance, without referencing The Dance or

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crediting Ribeiro as The Dance’s creator and owner. Accordingly, upon

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information and belief, Epic actively and knowingly directs, causes,

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induces, and encourages others, including, but not limited to, its

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players,

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developers, and repair providers, to misappropriate Ribeiro’s likeness

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and The Dance.

Indeed, Epic induces others and/or contributes to their

designers,

suppliers,

distributors,

resellers,

software

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Prominent artists, including Chancelor Johnathan Bennett,

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known as Chance the Rapper, and Terrence Ferguson, known as 2

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Milly, have also publicly disapproved of Epic’s practices, and advocated

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for Epic sharing profits with the artists that created these dances.

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Epic has made a fortune from unlawfully and unfairly

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misappropriating Ribeiro’s and other artists’ creative expression,

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likeness, and endorsement without crediting or compensating these

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artists.

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further using his likeness and The Dance, and to recover the revenue

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rightfully owed to him.

Ribeiro thus brings this lawsuit to prevent Fortnite from

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FIRST CAUSE OF ACTION

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(For Direct Infringement of Copyright Against All Defendants)

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Ribeiro hereby repeats and realleges the allegations set

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forth in paragraphs 1 through 38 above, as though fully set forth herein

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Complaint

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In 1991, Ribeiro created The Dance and first performed it on

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The Fresh Prince of Bel-Air during the episode Will’s Christmas Show.

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On or around August 15, 2006, the segment of The Fresh Prince of Bel-

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Air during which Ribeiro performs The Dance was published to

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YouTube where it can be accessed by millions of people. The video

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shows Ribeiro, as Carlton Banks, performing The Dance to the tune of

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Tom Jones “It’s Not Unusual.”

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Ribeiro is the undisputed creator of the wildly popular and

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immediately recognizable Dance. YouTube videos depicting Ribeiro’s

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performance in The Fresh Prince of Bel-Air are the original depictions

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of The Dance.

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Ribeiro is in the process of registering The Dance with the

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United States Copyright Office.

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submitted an application for copyright registration of three variations

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of The Dance and assigned Copyright Office case numbers 1-

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7226013364, 1-7226013290, and 1-7225814191.

On December 15, 2018, Ribeiro

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Defendants have infringed and continue to infringe Ribeiro’s

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copyrights in The Dance by selling The Dance emote as an in-game

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purchase, under the name “Fresh” that, if purchased, a player can use

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to make his or her avatar perform during Fortnite gameplay;

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substantially copying The Dance in digital form to the Fortnite game;

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advertising The Dance in its promotional materials; and creating the

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Fresh emote as a derivative work of The Dance.

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Defendants did not seek to obtain Ribeiro’s permission for

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its use of The Dance for the Fresh emote.

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compensated or credited Ribeiro for their use of The Dance.

Nor have Defendants

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Moreover, Defendants actively and knowingly directed,

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caused, induced, and encouraged others, including, but not limited to,
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Complaint

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its players, designers, suppliers, distributors, resellers, software

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developers, and repair providers, to misappropriate Ribeiro’s likeness

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and The Dance.

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Defendants’ acts of infringement have been willful,

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intentional, and purposeful, in disregard of and with indifference to

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Plaintiff’s rights.

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Defendants’ willful and continued unauthorized use of The

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Dance has caused and will continue to cause confusion and mistake by

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leading the public to erroneously associate the Fresh emote offered by

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Epic with The Dance in violation of 17 U.S.C. §§ 101 et seq.

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As a result of Defendants’ conduct, Ribeiro has been

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damaged by being precluded from receiving his rightful share of the

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profits earned by Epic for its improper and unlicensed use of Ribeiro’s

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exclusive copyrights in The Dance in Fortnite.

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Ribeiro is entitled to permanent injunctive relief preventing

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Defendants, and their officers, agents, and employees, and all related

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persons from further using The Dance and engaging in other acts in

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violation of Copyright law.

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As

a

direct

and

proximate

result

of

Defendants’

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infringement of Plaintiff’s copyrights and exclusive rights under

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copyright, Ribeiro is also entitled to recover damages, including

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attorneys’ fees, and any profits obtained by Defendants as a result of

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the infringements alleged above, in an amount according to proof to be

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determined at the time of trial.

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In doing the acts herein alleged, Defendants acted

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fraudulently, willfully, and with malice, and Ribeiro is therefore

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entitled to punitive damages according to proof at the time of trial.

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Complaint

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SECOND CAUSE OF ACTION

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(For Contributory Infringement of Copyright Against All

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Defendants)

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Ribeiro hereby repeats and realleges the allegations set

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forth in paragraphs 1 through 51 above, as though fully set forth herein.

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Ribeiro is in the process of registering The Dance with the

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United States Copyright Office.

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submitted applications for copyright registrations and assigned

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Copyright Office case numbers 1-7226013364, 1-7226013290, and 1-

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On December 15, 2018, Ribeiro

7225814191.

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Defendants have infringed and continue to infringe Ribeiro’s

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copyrights in The Dance by selling The Dance emote as an in-game

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purchase, under the name “Fresh” that, if purchased, a player can use

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to make his or her avatar perform during Fortnite gameplay;

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substantially copying The Dance in digital form to the Fortnite game;

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advertising The Dance in its promotional materials; and creating the

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Fresh emote as a derivative work of The Dance.

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By providing the Fresh emote necessary for its players to

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commit direct copyright infringement, Defendants have and continue to

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materially

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distributions by its players of The Dance.

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contribute

to

the

unauthorized

reproductions

and

Defendants did not seek to obtain Ribeiro’s permission for

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its use of The Dance for the Fresh emote.

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compensated or credited Ribeiro for their use of The Dance.

Nor have Defendants

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Moreover, Defendants actively and knowingly directed,

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caused, induced, and encouraged others, including, but not limited to,

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its players, designers, suppliers, distributors, resellers, software

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Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 15 of 24 Page ID #:15

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developers, and repair providers, to misappropriate Ribeiro’s likeness

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and The Dance.

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Defendants’ acts of infringement have been willful,

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intentional, and purposeful, in disregard of and with indifference to

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Plaintiff’s rights.

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Defendants’ willful and continued unauthorized use of The

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Dance has caused and will continue to cause confusion and mistake by

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leading the public to erroneously associate the Fresh emote offered by

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Epic with The Dance in violation of 17 U.S.C. §§ 101 et seq.

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As a result of Defendants’ conduct, Ribeiro has been

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damaged by being precluded from receiving his rightful share of the

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profits earned by Epic for its improper and unlicensed use of Ribeiro’s

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exclusive copyrights in The Dance in Fortnite.

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Defendants’ conduct is causing and, unless enjoined and

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restrained by this Court, will continue to cause Plaintiff great and

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irreparable injury that cannot be compensated or measured in money.

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Plaintiff has no adequate remedy at law. Pursuant to 17 U.S.C. § 502,

18

Plaintiff is entitled to injunctive relief, prohibiting further contributory

19

infringements of Plaintiff’s copyrights.

20

As

a

direct

and

proximate

result

of

Defendants’

21

infringement of Plaintiff’s copyrights and exclusive rights under

22

copyright, Ribeiro is also entitled to recover damages, including

23

attorneys’ fees, and any profits obtained by Defendants as a result of

24

the infringements alleged above, in an amount according to proof to be

25

determined at the time of trial.

26

In doing the acts herein alleged, Defendants acted

27

fraudulently, willfully, and with malice, and Ribeiro is therefore

28

entitled to punitive damages according to proof at the time of trial.
– 14 –
Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 16 of 24 Page ID #:16

1

THIRD CAUSE OF ACTION

2

(For Violation of the Right of Publicity Under California

3

Common Law Against All Defendants)

4

Ribeiro hereby repeats and realleges the allegations set

5

forth in paragraphs 1 through 63, above, as though fully set forth

6

herein.

7

Through their use of The Dance as an in-game dance emote

8

that can be purchased as the Fresh, Defendants misappropriated

9

Ribeiro’s identity. The Fresh emote depicts Ribeiro performing The

10

Dance.

11

Upon information and belief, Defendants created the Fresh

12

emote by capturing and digitally copying Ribeiro performing The Dance.

13

Defendants then utilized the digital copy to create code that, if

14

purchased, allows player avatars to perform The Dance.

15

Defendants did not seek or obtain Ribeiro’s authorization or

16

consent for its use of his likeness or The Dance for the Fresh emote. Nor

17

have Defendants compensated or credited Ribeiro for their use of his

18

likeness or The Dance.

19

Defendants used Ribeiro’s likeness and The Dance to

20

generate significant wealth by: 1) selling the infringing Fresh emote

21

directly to players; 2) advertising the Fresh emote to attract additional

22

players, including Ribeiro’s fans or those persons familiar with The

23

Dance to play Fortnite and make in-game purchases; 3) using Ribeiro’s

24

fame to stay relevant to its current players to incentivize those players

25

to continue playing Fortnite; 4) impliedly representing that Ribeiro

26

consented to Epic’s use of his likeness; 5) intentionally causing the

27

erroneous public association between the Fresh and The Dance; 6)

28

creating the false impression that Ribeiro endorsed Fortnite; and 7)
– 15 –
Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 17 of 24 Page ID #:17

1

inducing and/or contributing to the performance and misattribution of

2

The Dance by others.

3

As a performance artist, Ribeiro exploits his identity by

4

performing in shows, events, and with the media. Ribeiro was damaged

5

by Defendants’ conduct as he was prevented from reaping the profits of

6

licensing his likeness or The Dance to Defendants.

7

Defendants’ conduct caused and will continue to cause

8

confusion and mistake by leading the public to erroneously believe that

9

Ribeiro consented to the use of his likeness or The Dance in the Fortnite

10

game.

11

Ribeiro is entitled to permanent injunctive relief preventing

12

Defendants, and their officers, agents, and employees, and all related

13

persons from further using his likeness or The Dance.

14

Ribeiro is also entitled to recover damages, including any

15

profits obtained by Defendants as a result of the infringements alleged

16

above, in an amount according to proof to be determined at the time of

17

trial.

18

FOURTH CAUSE OF ACTION

19

(For Violation of the Right of Publicity Under Cal. Civ. Code §

20

3344 Against All Defendants)

21

Ribeiro hereby repeats and realleges the allegations set

22

forth in paragraphs 1 through 72, above, as though fully set forth

23

herein.

24

Through their use of The Dance as an in-game dance emote

25

that can be purchased as the Fresh, Defendants misappropriated

26

Ribeiro’s identity. The Fresh emote depicts Ribeiro performing The

27

Dance.

28
– 16 –
Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 18 of 24 Page ID #:18

1

Upon information and belief, Defendants created the Fresh

2

emote by capturing and digitally copying Ribeiro performing The Dance.

3

Defendants then utilized the digital copy to create code that, if

4

purchased, allows player avatars to perform The Dance.

5

Defendants did not seek or obtain Ribeiro’s authorization or

6

consent for its use of his likeness or The Dance for the Fresh emote. Nor

7

have Defendants compensated or credited Ribeiro for their use of his

8

likeness or The Dance.

9

Defendants used Ribeiro’s likeness and The Dance to

10

generate significant wealth by: 1) selling the infringing Fresh emote

11

directly to players; 2) advertising the Fresh emote to attract additional

12

players, including Ribeiro’s fans or those persons familiar with The

13

Dance to play Fortnite and make in-game purchases; 3) using Ribeiro’s

14

fame to stay relevant to its current players to incentivize those players

15

to continue playing Fortnite; 4) impliedly representing that Ribeiro

16

consented to Epic’s use of his likeness; 5) intentionally causing the

17

erroneous public association between the Fresh and The Dance; 6)

18

creating the false impression that Ribeiro endorsed Fortnite; and 7)

19

inducing and/or contributing to the performance and misattribution of

20

The Dance by others.

21

As a performance artist, Ribeiro exploits his identity by

22

performing in shows, events, and with the media. Ribeiro was damaged

23

by Defendants’ conduct as he was prevented from reaping the profits of

24

licensing his likeness or The Dance to Defendants.

25

Defendants’ conduct caused and will continue to cause

26

confusion and mistake by leading the public to erroneously believe that

27

Ribeiro consented to the use of his likeness or The Dance in the Fortnite

28

game.
– 17 –
Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 19 of 24 Page ID #:19

1

Ribeiro is entitled to permanent injunctive relief preventing

2

Defendants, and their officers, agents, and employees, and all related

3

persons from further using his likeness or The Dance.

4

Ribeiro is also entitled to recover damages, including any

5

profits obtained by Defendants as a result of the infringements alleged

6

above, in an amount according to proof to be determined at the time of

7

trial.

8

FIFTH CAUSE OF ACTION

9

(Unfair Competition Under Cal. Bus. & Prof. Code § 17200)

10

Ribeiro hereby repeats and realleges the allegations set

11

forth in paragraphs 1 through 81, above, as though fully set forth

12

herein.

13

By

misappropriating

Ribeiro’s

likeness

through

the

14

improper use of The Dance, Defendants have engaged in business acts

15

or practices that constitute unfair competition in violation of Cal. Bus.

16

& Prof. Code. § 17200.

17

As a result of Defendants’ violations, Defendants have

18

unjustly enriched themselves by: 1) selling the infringing Fresh emote

19

directly to players; 2) advertising the Fresh emote to attract additional

20

players, including Ribeiro’s fans or those persons familiar with The

21

Dance to play Fortnite and make in-game purchases; 3) using Ribeiro’s

22

fame to stay relevant to its current players to incentivize those players

23

to continue playing Fortnite; 4) impliedly representing that Ribeiro

24

consented to Epic’s use of his likeness; 5) intentionally causing the

25

erroneous public association between the Fresh and The Dance; 6)

26

creating the false impression that Ribeiro endorsed Fortnite; and 7)

27

inducing and/or contributing to the performance and misattribution of

28

The Dance by others.
– 18 –
Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 20 of 24 Page ID #:20

1

As a result of Defendants’ conduct, Ribeiro has been

2

damaged by Defendants’ conduct as he was prevented from reaping the

3

profits of licensing his likeness or The Dance to Defendants.

4

Ribeiro is entitled to permanent injunctive relief preventing

5

Defendants, and their officers, agents, and employees, and all related

6

persons from further using his likeness or The Dance.

7

Ribeiro is also entitled to recover damages, including any

8

profits obtained by Defendants as a result of the misappropriation

9

alleged above, in an amount according to proof to be determined at the

10

time of trial.

11

SIXTH CAUSE OF ACTION

12

(Unfair Competition Under 15 U.S.C. § 1125(a))

13

Ribeiro hereby repeats and realleges the allegations set

14

forth in paragraphs 1 through 87 above, as though fully set forth herein.

15

Since debuting The Dance, The Dance has exploded in

16

popularity. The Dance has become synonymous with Ribeiro, who is

17

unanimously credited with creating the dance that bears his famous

18

first role of Carlton Banks from The Fresh Prince of Bel-Air. Ribeiro

19

has also been interviewed several times about the creation of The Dance

20

and how to properly perform it. Accordingly, The Dance is a part of

21

Ribeiro’s identity and the dance’s unique movements readily evoke

22

imagery of Ribeiro’s famous performances of The Dance.

23

Defendant's copying and relabeling of Ribeiro’s The Dance

24

has caused confusion, deception, and mistake by the creation of the false

25

and misleading impression that Defendants were the creators of The

26

Dance or that Ribeiro was somehow affiliated, connected, or associated

27

with Defendants or provided sponsorship or approval to Defendants.

28
– 19 –
Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 21 of 24 Page ID #:21

1

Defendants have further misrepresented the nature,

2

characteristics, qualities and origin of The Dance. Defendants have

3

diluted Ribeiro’s signature Dance by inducing others to flood the

4

Internet with videos with performances of The Dance without any

5

attribution. Defendants have tarnished Riberio’s signature Dance by

6

incorporating it, without permission, into a violent video game.

7

As a result of Defendants’ conduct, Ribeiro is damaged by

8

Defendants’ exploitation of his likeness through 1) selling the infringing

9

Fresh emote directly to players; 2) advertising the Fresh emote to

10

attract additional players, including Ribeiro’s fans or those persons

11

familiar with The Dance to play Fortnite and make in-game purchases;

12

3) using Ribeiro’s fame to stay relevant to its current players to

13

incentivize those players to continue playing Fortnite; 4) impliedly

14

representing that Ribeiro consented to Epic’s use of his likeness; 5)

15

intentionally causing the erroneous public association between the

16

Fresh and The Dance; 6) creating the false impression that Ribeiro

17

endorsed Fortnite; and 7) inducing and/or contributing to the

18

performance and misattribution of The Dance by others.

19

Ribeiro is entitled to permanent injunctive relief preventing

20

Defendants, and their officers, agents, and employees, and all related

21

persons from further using The Dance.

22

Ribeiro is also entitled to recover damages, including

23

attorney’s fees, as a result of the infringements alleged above, in an

24

amount according to proof to be determined at the time of trial.

25
26
27
28
– 20 –
Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 22 of 24 Page ID #:22

1

PRAYER FOR RELIEF

2

As to the First Cause of Action:

3

1.

4

For an order restraining Defendants from using, selling, or
displaying Ribeiro’s copyright in the Fortnite game;

5

2.

For an award of damages according to proof;

6

3.

For punitive and/or exemplary damages;

7

4.

For attorney’s fees and costs;

8

As to the Second Cause of Action:

9

5.

10

For an order restraining Defendants from using, selling, or
displaying Ribeiro’s copyright in the Fortnite game;

11

6.

For an award of damages according to proof;

12

7.

For punitive and/or exemplary damages;

13

8.

For attorney’s fees and costs;

14

As to the Third Cause of Action:

15

9.

For an order restraining Defendants from using, advertising,

16

promoting, marketing, selling or offering for sale Ribeiro’s

17

likeness in the Fortnite game;

18

10.

For an award of damages according to proof;

19

As to the Fourth Cause of Action:

20

11.

For an order restraining Defendants from using, advertising,

21

promoting, marketing, selling or offering for sale Ribeiro’s

22

likeness in the Fortnite game;

23

12.

For an award of damages according to proof;

24

13.

For punitive and/or exemplary damages;

25

As to the Fifth Cause of Action:

26

14.

For an order restraining Defendants from advertising, promoting,

27

marketing, selling or offering for sale Ribeiro’s copyright and

28

likeness in the Fortnite game;
– 21 –
Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 23 of 24 Page ID #:23

1

15.

For an award of damages according to proof;

2

16.

For punitive and/or exemplary damages;

3

17.

For attorney’s fees and costs;

4

As to the Sixth Cause of Action:

5

18.

For an order restraining Defendants from advertising, promoting,

6

marketing, selling or offering for sale Ribeiro’s copyright and

7

likeness in the Fortnite game;

8

19.

For an award of damages according to proof;

9

20.

For punitive and/or exemplary damages; and

10

21.

For attorney’s fees and costs;

11

As to All Causes of Action:

12

22.

For costs of suit; and

13

23.

For such other and further relief as the Court may deem proper.

14
15
16
17
18
19
20
21

Dated: December 17, 2018

Respectfully Submitted,
Pierce Bainbridge Beck Price &
Hecht LLP
By: /s/Carolynn Kyungwon Beck
Carolynn Kyungwon Beck
Attorneys for Plaintiff
Alfonso Ribeiro

22
23
24
25
26
27
28
– 22 –
Complaint

Case 2:18-cv-10412 Document 1 Filed 12/17/18 Page 24 of 24 Page ID #:24

1
2
3

JURY TRIAL
Plaintiff Alfonso Ribeiro requests a trial by jury on all issues to
which it is entitled a jury.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Dated: December 17, 2018

Respectfully Submitted,
Pierce Bainbridge Beck Price &
Hecht LLP
By: /s/Carolynn Kyungwon Beck
Carolynn Kyungwon Beck
Carolynn Kyungwon Beck (SBN
264703)
[e-mail]
Daniel Dubin (SBN 313235)
[e-mail]
600 Wilshire Boulevard, Suite 500
Los Angeles, California 90017-3212
[phone]
David L. Hecht (NY4695961) (pro
hac vice admission pending)
[e-mail]
Maxim Price (NY684858) (pro hac
vice admission pending)
[e-mail]
Yi Wen Wu (NY5294475) (pro hac
vice admission pending)
[e-mail]
20 West 23rd Street, Fifth Floor
New York, New York 10010
[phone]
Attorneys for Plaintiff
Alfonso Ribeiro

28
– 23 –
Complaint