Alfonso Ribeiro v. Take-Two Interactive Software, Inc. et al

Filing 1

COMPLAINT Receipt No: 0973-22905826 - Fee: $400, filed by Plaintiff Alfonso Ribeiro. (Attorney Carolynn Kyungwon Beck added to party Alfonso Ribeiro(pty:pla))(Beck, Carolynn)

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 1 of 24 Page ID #:1

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Pierce Bainbridge Beck Price & Hecht LLP
John M. Pierce (SBN 250443)
[e-mail]
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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Complaint for:

Plaintiff,

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Case No. 2:18-cv-10417

Alfonso Ribeiro, an
individual,

v.
Take-Two Interactive
Software, Inc.; a Delaware
corporation; 2K Sports, Inc., a
Delaware corporation; 2K
Games, Inc., a Delaware
corporation; Visual Concepts
Entertainment, a California
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-10417 Document 1 Filed 12/17/18 Page 2 of 24 Page ID #:2

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Plaintiff Alfonso Ribeiro, aka Ribeiro, (“Plaintiff” or “Ribeiro”), by

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and through his undersigned counsel, asserts the following claims

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against Defendants Take-Two Interactive Software, Inc. (“Take-Two”),

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2K Sports, Inc. (“2K Sports”), 2K Games, Inc. (“2K Games”), Visual

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Concepts Entertainment (“Visual Concepts”) and Does 1 through 50

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(collectively referred to as “Defendants”), and alleges as follows:

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I.

OVERVIEW

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Through their unauthorized use of Ribeiro’s highly popular

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signature dance (“The Dance” or “Dance”) in their video game, NBA

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2K16, Defendants have unfairly profited from exploiting Ribeiro’s

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protected creative expression, likeness, and trademark.

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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 dance in at least NBA

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2K16 (“2K16”) under the name “So Fresh.” In 2K16, players can unlock

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and then purchase The Dance to customize their 2K16 MyPlayer

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avatars. Defendants also include at least one dance wholly similar to

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The Dance in subsequent NBA 2K games, such as the Ride the Wave

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dance move available in NBA 2K18.

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recognized by players and media worldwide as The Dance. Defendants

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did not credit Ribeiro nor seek his consent to use, display, reproduce,
–1–
Complaint

This dance was immediately

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 3 of 24 Page ID #:3

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sell, or create a derivative work based upon Ribeiro’s Dance or likeness

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in 2K16 or subsequent NBA 2K games.

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Defendants’ NBA 2K franchise is the most popular sports

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video game franchise in the world. Indeed, 2K16 was one of the highest

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selling games of 2015, selling over four million units worldwide within

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the first week of release. 2K16 was also Take Two’s highest selling

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sports game ever when it was first released. In addition to profits

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obtained from selling 2K16 – the game retails for $59.99 at release for

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the base edition and $79.99 for the Michael Jordan special edition –

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Defendants also profit from in-game purchases within 2K16.

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Defendants should not be able to profit from Ribeiro’s fame, hard work

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and creativity by its intentional misappropriation of Ribeiro’s original

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content, likeness, name and trademark. Ribeiro seeks injunctive relief

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and damages, including, but not limited to, Defendants’ profits

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attributed to its improper use of The 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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Take-Two

Interactive

Software,

Inc.

is

a

Delaware

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corporation with its principal place of business at 110 West 44th Street,

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New York, NY 10036.

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2K Sports, Inc. is a Delaware corporation with its principal

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place of business at 10 Hamilton Landing, Novato, CA 94949. 2K Sports

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is a subsidiary corporation of Take-Two.

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2K Games, Inc. is a Delaware corporation with its principal

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place of business at 10 Hamilton Landing, Novato, CA 94949.

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Games is a subsidiary corporation of Take-Two.

2K

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Visual Concepts Entertainment is a California corporation

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with its principal place of business at 10 Hamilton Landing, Novato, CA
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Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 4 of 24 Page ID #:4

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94949.

Visual Concepts is a subsidiary corporation of 2K Games.

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Alongside 2K Games, Visual Concepts is the creator and developer of

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the NBA 2K franchise, which was first released in 1999.

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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 Ribeiro, who therefore

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sues those defendants by such fictitious names. When the true names

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of those defendants have been ascertained, Ribeiro will amend this

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complaint accordingly. Each of the defendants aided and abetted and

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is responsible in some manner for the occurrences herein alleged, and

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Ribeiro’s injuries were proximately caused thereby. Defendants Take-

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Two, 2K, Visual Concepts and Does 1 through 50, inclusive, shall

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collectively be referred to as “Defendants.”

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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) and 28 U.S.C. § 1367

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(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 claims occurred in this

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

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because all Defendants are subject to personal jurisdiction in this State

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and at least one in this District.
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Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 5 of 24 Page ID #:5

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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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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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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’”).

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Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 6 of 24 Page ID #:6

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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.

Accordingly, The Dance is a part of Ribeiro’s

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The NBA 2K Franchise and the Rise of

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Microtransactions

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The NBA 2K franchise is an annual series of basketball

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video games modeled after the National Basketball Association

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(“NBA”). The NBA 2K series consists of 18 annual installments and

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four spinoff games. Visual Concepts has been the developer of each of

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the games since inception; Sega Games Company, Limited was the

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publisher of the first six games before selling Visual Concepts to Take-

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Two, who later created the 2K Sports and 2K Games subsidiaries.

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Take-Two, 2K Sports, 2K Games, and Visual Concepts have been the

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creators and publishers of the franchise since NBA 2K6, released in

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2005.

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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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–5–
Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 7 of 24 Page ID #:7

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Although significantly more complex now, the original “NBA

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2K” video game was comparatively simple. The game, released on

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November 10, 1999 for the Dreamcast console, featured teams from the

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1999-2000 NBA season. Players could play as any of those teams, or

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players from those teams, in head-to-head matchups against another

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player or a computer program. Players could also create their own

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players and teams. The game did not have online capability, nor did it

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offer in-game purchases.

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The two subsequent video games, “NBA 2K1” and “NBA

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2K2,” were largely similar to the first iteration. The fourth installment,

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ESPN NBA Basketball – the only game in the series not to feature “2K”

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in the title – was the first game to introduce a career mode where

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players can create their own character and play as that character in

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various game modes. The game was also the first in the series to feature

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online game modes.

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NBA 2K10, released in October 2009, advanced the series’

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career mode feature. Then called MyPlayer, the career mode feature

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allowed players to create a personalized character by customizing the

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character’s physical and personal traits, including, position, play style,

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jersey number, name, age, body type, hair, facial features, and tattoos.

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The feature also allows users to “spend” skill points earned during

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MyPlayer games to further improve the character’s skills.

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NBA 2K14, released in October 2013, was the first

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installment to introduce microtransactions to the MyPlayer mode,

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which was renamed MyCareer. In addition to earning currency through

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gameplay, the game began allowing players to purchase “Virtual

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Currency” or “VC” with real money.

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Defendants offered five pricing levels for purchasing Virtual Currency:
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Complaint

For example, in NBA 2K18,

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 8 of 24 Page ID #:8

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1) 15,000 VC for $4.99;

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2) 35,000 VC for $9.99;

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3) 75,000 VC for $19.99;

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4) 200,000 VC for $49.99; or

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5) 450,000 VC for $99.99.

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VC can be spent on MyCareer attributes, uniforms, apparel,

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signature movements and dances.

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Although controversial, as purchasers already spent the

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retail cost of around $60 to purchase 2K games, the in-game

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microtransactions became a lucrative source of revenue for Defendants.

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As a result, Defendants began offering more options through

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microtransactions in subsequent installments, including dances. The

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more complicated the dance, the more it costs to purchase.

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In NBA 2K16, released on September 29, 2015, Defendants

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exploited African-American talent and creativity by copying their

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dances and movements and selling them through microtransactions.

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Defendants copied the dances and movements of numerous African-

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American performers, including, among others, Ribeiro’s The Dance

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from The Fresh Prince of Bel-Air television show (named “So Fresh” in

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game), the “Whip” dance created by the Atlanta hip hop group, “We Are

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Toonz,” in 2013 (also named “Whip” in game), the “Cat Daddy” dance

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created by the hip hop group, “The Rej3ctz,” in 2010 (named “Cat

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Daddy” and “Rollin” in game), the “Thriller Dance” created by Michael

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Jackson in his “Thriller” music video in 1982 (named “Spiller” in game),

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the “Soulja Boy” dance created by the hip hop artist, “Soulja Boy,” in

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2007 (named “Soul Jah Boi” in game), the “Nae Nae” dance created by

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“We Are Toonz,” in 2013 (also named “Nae Nae” in game), and the

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Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 9 of 24 Page ID #:9

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“Schmoney Dance” created by the hip hop artist, Bobby Shmurda, in

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2014 (named “Dip” in game).

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Upon

information

and

belief,

although

Defendants

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presumably obtained licenses from athletes to use their likenesses and

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voices, Defendants did not seek consent or authorization from these

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artists to use any of these movements or dances. Defendants also did

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not obtain consent to use the names of the dances that these artists

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created.

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Upon news of the inclusion of dance moves in NBA 2K16,

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multiple media publications highlighted The Dance as the preeminent

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dance move included in the package of dance moves offered in the game,

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providing free publicity to the NBA 2K franchise at Ribeiro’s expense.

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Dances, or emotes, are incredibly popular and provide

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significant additional revenue to the NBA 2K franchise. Indeed, in

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2K14, when Defendants first introduced VC, user spending increased

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by about 150% compared to NBA 2K13 with spending on Virtual

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Currency making up 92% of the increase. Using Virtual Currency,

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players purchase dances, alongside clothing, to personalize their

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gaming experience.

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Currency to avoid the tedious process of earning Virtual Currency

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through gameplay. Indeed, in NBA 2K18, players are given only 6,000

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VC to start, and players earn less than 500 VC for each game played on

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MyCareer.

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intentionally offer considerably low amounts of VC through gameplay

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in order to incentivize players to purchase VC instead. In NBA 2K16,

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the dance “So Fresh” cost 1,000 VC to unlock.

Moreover, players routinely purchase Virtual

As dances routinely cost over 1,000 VC, Defendants

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Upon information and belief, Defendants will likely continue

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adding popular dances/emotes to the 2K games without the artists’ or
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Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 10 of 24 Page ID #:10

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creators’ consent or approval to attract more players and add to its ever-

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growing revenue.

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Unauthorized Use of The Dance in NBA 2K16 and

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Subsequent NBA 2K Games

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On September 29, 2015, Defendants released NBA 2K16 on

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the Microsoft Windows, iOS, Android, PlayStation 4, PlayStation 3,

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Xbox One and Xbox 360 platforms. Defendants priced the regular game

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at $59.99, and the Michael Jordan special edition at $79.99. Players

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must unlock The Dance through gameplay and then spend 1000 VC.

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Moreover, on September 7, 2018, Defendants released NBA
2K19 for all platforms.

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If purchased, the 2K MyCareer avatar can perform The

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Dance during gameplay. Defendants did not seek to obtain Ribeiro’s

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authorization or consent for The Dance. Moreover, Ribeiro did not give

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Defendants express or implied consent for its use of his likeness and

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The Dance. Defendants also did not compensate Ribeiro.

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Upon information and belief, Defendants added The Dance

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to its NBA 2K franchise to intentionally exploit the popularity of Ribeiro

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and

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compensation.

Ribeiro’s

Dance

without

providing

Ribeiro

any

form

of

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Defendants profited from its improper misappropriation of

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

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emotes directly to players; 2) selling at least NBA 2K16 and possibly

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subsequent NBA 2K games that contain The Dance emotes; 3)

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advertising The Dance emotes to attract additional players, including

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Ribeiro’s fans or those persons familiar with The Dance to play NBA

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2K16 and subsequent NBA 2K games and make in-game purchases; 4)

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keeping the franchise relevant to its players to incentivize those players
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Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 11 of 24 Page ID #:11

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to continue purchasing the 2K games; 5) impliedly representing that

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Ribeiro consented to Defendants’ use of his likeness; 6) erroneously

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causing the association of NBA 2K16 and subsequent NBA 2K games

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with The Dance; 7) creating the false impression that Ribeiro endorsed

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NBA 2K16 and subsequent NBA 2K games; and 8) inducing and/or

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contributing to NBA 2K16 and subsequent NBA 2K games characters

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players’ characters performing The Dance.

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Upon information and belief, Defendants actively and

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knowingly directed, caused, induced, and encouraged others, including,

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but not limited to, their players, designers, suppliers, distributors,

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resellers, software developers, and repair providers, to misappropriate

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Ribeiro’s likeness and The Dance.

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By adding microtransactions to their popular 2K franchise,

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Defendants have substantially increased their profits from unlawfully

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and unfairly misappropriating Ribeiro’s and other artists’ creative

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expression,

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compensating these artists. Ribeiro thus bring this lawsuit to prevent

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Defendants from further using his likeness and The Dance, and to

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recover the profits rightfully owed to him.

likenesses

and

trademarks

without

crediting

or

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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 37, above, as though fully set forth

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herein.

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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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Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 12 of 24 Page ID #:12

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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 video’s 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
United States Copyright Office.

On December 15, 2018, Ribeiro

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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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7225814191.

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In NBA 2K16 and possibly subsequent games, players can

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have their characters perform the dance within the game. In fact, a .gif

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was released by the NBA 2K franchise that shows a side by side

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comparison of “So Fresh” and The Dance to show the exact similarities

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between the in-game dance and Ribeiro’s creation. Defendants have

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infringed and continue to infringe Ribeiro’s copyrights in The Dance by

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offering The Dance emotes that, if purchased, a player can use to make

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his or her avatar perform during 2K gameplay; substantially copying

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The Dance in digital form to the 2K games; advertising The Dance in

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its promotional materials; and creating the So Fresh emotes as

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derivative works 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. Nor have Defendants compensated or credited

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Ribeiro for their use of The Dance.

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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

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 13 of 24 Page ID #:13

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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’ conduct caused and will continue to cause

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confusion and mistake by leading the public to erroneously believe that

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Ribeiro consented to the use of his likeness NBA 2K16 and subsequent

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NBA 2K games 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 Defendants for their improper and unlicensed use of

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Ribeiro’s exclusive copyrights in The Dance emote.

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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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Ribeiro is also entitled to recover damages, including any

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profits obtained by Defendants as a result of the infringements

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

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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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– 12 –
Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 14 of 24 Page ID #:14

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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 50, above, as though fully set forth

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herein.

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In at least NBA 2K16 and possibly in subsequent games,

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players can have their characters perform the dance within the game.

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Defendants have infringed and continue to infringe Ribeiro’s copyrights

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in The Dance by offering the So Fresh emote that, if purchased, a player

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can use to make his or her avatar perform The Dance during 2K

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gameplay; substantially copying The Dance in digital form to the 2K

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games; advertising The Dance in its promotional materials; and

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creating the So Fresh emotes as derivative works of The Dance.

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By providing the So Fresh emotes necessary for its players

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to commit direct copyright infringement, Defendants have and continue

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to materially contribute to the unauthorized reproductions and

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distributions by its players 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 So Fresh emotes. Nor have Defendants

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compensated or credited Ribeiro for their use of The Dance.

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

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and The Dance.

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– 13 –
Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 15 of 24 Page ID #:15

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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 Dance with NBA 2K16

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and subsequent NBA 2K games 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 Defendants for their improper and unlicensed use of

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Ribeiro’s exclusive copyrights in The Dance.

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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,

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Plaintiff is entitled to injunctive relief, prohibiting further contributory

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infringements of Plaintiff’s copyrights.

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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.

24

In doing the acts herein alleged, Defendants acted

25

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

26

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

27
28
– 14 –
Complaint

Case 2:18-cv-10417 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 61, above, as though fully set forth

6

herein.

7

Through their use of The Dance as in-game dance emotes,

8

Defendants misappropriated Ribeiro’s identity. In at least NBA 2K16

9

and possibly in subsequent NBA 2K games, players can have their

10

characters perform the dance within the game.

11

Defendants did not seek or obtain Ribeiro’s authorization or

12

consent for its use of his likeness for the So Fresh emotes. Nor have

13

Defendants compensated or credited Ribeiro for their use of The Dance.

14

Defendants used Ribeiro’s likeness to generate significant

15

wealth by: 1) selling the infringing emotes directly to players; 2) selling

16

at least NBA 2K16 and possibly subsequent NBA 2K games that

17

contain The Dance emotes; 3) advertising The Dance emotes to attract

18

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

19

with The Dance to play NBA 2K16 and subsequent NBA 2K games and

20

make in-game purchases; 4) keeping the franchise relevant to its

21

players to incentivize those players to continue purchasing the 2K

22

games; 5) impliedly representing that Ribeiro consented to Defendants’

23

use of his likeness; 6) erroneously causing the association of NBA 2K16

24

and subsequent NBA 2K games with The Dance; 7) creating the false

25

impression that Ribeiro endorsed NBA 2K16 and subsequent NBA 2K

26

games; and 8) inducing and/or contributing to NBA 2K16 and

27

subsequent NBA 2K games characters players’ characters performing

28

The Dance.
– 15 –
Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 17 of 24 Page ID #:17

1

As a performance artist, Ribeiro exploits his identity by

2

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

3

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

4

licensing his likeness to Defendants.

5

Defendants’ conduct caused and will continue to cause

6

confusion and mistake by leading the public to erroneously believe that

7

Ribeiro consented to the use of his likeness in NBA 2K16 and

8

subsequent NBA 2K games.

9

Ribeiro is entitled to permanent injunctive relief preventing

10

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

11

persons from further using his likeness.

12

Ribeiro is also entitled to recover damages, including any

13

profits obtained by Defendants as a result of the infringements alleged

14

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

15

trial.

16

FOURTH CAUSE OF ACTION

17

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

18

3344 Against All Defendants)

19

Ribeiro hereby repeats and realleges the allegations set

20

forth in paragraphs 1 through 69, above, as though fully set forth

21

herein.

22

Through their use of The Dance as in-game dance emotes,

23

Defendants misappropriated Ribeiro’s identity. In at least NBA 2K16

24

and possibly in subsequent NBA 2K games, players can have their

25

characters perform The Dance within the game.

26

Defendants did not seek or obtain Ribeiro’s authorization or

27

consent for its use of his likeness for the So Fresh emotes. Nor have

28

Defendants compensated or credited Ribeiro for their use of The Dance.
– 16 –
Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 18 of 24 Page ID #:18

1

Defendants used Ribeiro’s likeness to generate significant

2

wealth by: 1) selling the infringing emotes directly to players; 2) selling

3

at least NBA 2K16 and possibly subsequent NBA 2K games that

4

contain The Dance emotes; 3) advertising The Dance emotes to attract

5

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

6

with The Dance to play NBA 2K16 and subsequent NBA 2K games and

7

make in-game purchases; 4) keeping the franchise relevant to its

8

players to incentivize those players to continue purchasing the 2K

9

games; 5) impliedly representing that Ribeiro consented to Defendants’

10

use of his likeness; 6) erroneously causing the association of NBA 2K16

11

and subsequent NBA 2K games with The Dance; 7) creating the false

12

impression that Ribeiro endorsed NBA 2K16 and subsequent NBA 2K

13

games; and 8) inducing and/or contributing to NBA 2K16 and

14

subsequent NBA 2K games characters players’ characters performing

15

The Dance.

16

As a performance artist, Ribeiro exploits his identity by

17

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

18

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

19

licensing his likeness to Defendants.

20

Defendants’ conduct caused and will continue to cause

21

confusion and mistake by leading the public to erroneously believe that

22

Ribeiro consented to the use of his likeness in NBA 2K16 and

23

subsequent NBA 2K games.

24

Ribeiro is entitled to permanent injunctive relief preventing

25

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

26

persons from further using his likeness.

27

Ribeiro is also entitled to recover damages, including any

28

profits obtained by Defendants as a result of the infringements alleged
– 17 –
Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 19 of 24 Page ID #:19

1

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

2

trial.

3

FIFTH CAUSE OF ACTION

4

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

5

Ribeiro hereby repeats and realleges the allegations set

6

forth in paragraphs 1 through 77, above, as though fully set forth

7

herein.

8

By misappropriating The Dance, and Ribeiro’s likeness,

9

Defendants have engaged in business acts or practices that constitute

10
11

unfair competition in violation of Cal. Bus. & Prof. Code. § 17200.
As a result of Defendants’ violations, Defendants have

12

unjustly enriched themselves by:

13

directly to players; 2) selling at least NBA 2K16 and possibly

14

subsequent NBA 2K games that contain The Dance emotes; 3)

15

advertising The Dance emotes to attract additional players, including

16

Ribeiro’s fans or those persons familiar with The Dance to play NBA

17

2K16 and subsequent NBA 2K games and make in-game purchases; 4)

18

keeping the franchise relevant to its players to incentivize those players

19

to continue purchasing the 2K games; 5) impliedly representing that

20

Ribeiro consented to Defendants’ use of his likeness; 6) erroneously

21

causing the association of NBA 2K16 and subsequent NBA 2K games

22

with The Dance; 7) creating the false impression that Ribeiro endorsed

23

NBA 2K16 and subsequent NBA 2K games; and 8) inducing and/or

24

contributing to NBA 2K16 and subsequent NBA 2K games characters

25

players’ characters performing The Dance.

1) selling the infringing emotes

26

As a result of Defendants’ conduct, Ribeiro has been

27

damaged by being precluded from receiving his rightful share of the

28
– 18 –
Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 20 of 24 Page ID #:20

1

profits from selling or licensing his likeness, copyright, and trademark

2

in The Dance.

3

Moreover, Ribeiro was damaged by Defendants’ conduct as

4

he was prevented from reaping the profits of licensing his likeness,

5

copyright and trademark in The Dance to Defendants.

6

Ribeiro is entitled to permanent injunctive relief preventing

7

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

8

persons from further using his likeness and copyright.

9

Ribeiro is also entitled to recover damages, including any

10

profits obtained by Defendants as a result of the infringements alleged

11

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

12

trial.

13

SIXTH CAUSE OF ACTION

14

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

15

Ribeiro hereby repeats and realleges the allegations set

16

forth in paragraphs 1 through 84, above, as though fully set forth

17

herein.

18

Since debuting The Dance, The Dance has exploded in

19

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

20

unanimously credited with creating the dance that bears his famous

21

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

22

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

23

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

24

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

25

imagery of Ribeiro’s famous performances of The Dance.

26

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

27

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

28

and misleading impression that Defendants were the creators of The
– 19 –
Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 21 of 24 Page ID #:21

1

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

2

with Defendants or provided sponsorship or approval to Defendants.

3

Defendants have further misrepresented the nature,

4

characteristics, qualities and origin of The Dance. Defendants have

5

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

6

internet with videos with performances of The Dance without any

7

attribution.

8

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

9

Defendants’ exploitation of his name and likeness through 1) selling the

10

infringing emotes directly to players; 2) selling at least NBA 2K16 and

11

possibly subsequent NBA 2K games that contain The Dance emotes; 3)

12

advertising The Dance emotes to attract additional players, including

13

Ribeiro’s fans or those persons familiar with The Dance to play NBA

14

2K16 and subsequent NBA 2K games and make in-game purchases; 4)

15

keeping the franchise relevant to its players to incentivize those players

16

to continue purchasing the 2K games; 5) impliedly representing that

17

Ribeiro consented to Defendants’ use of his likeness; 6) erroneously

18

causing the association of NBA 2K16 and subsequent NBA 2K games

19

with The Dance; 7) creating the false impression that Ribeiro endorsed

20

NBA 2K16 and subsequent NBA 2K games; and 8) inducing and/or

21

contributing to NBA 2K16 and subsequent NBA 2K games characters

22

players’ characters performing The Dance.

23

Ribeiro is entitled to permanent injunctive relief preventing

24

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

25

persons from further using The Dance.

26

Ribeiro is also entitled to recover damages, including

27

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

28

amount according to proof to be determined at the time of trial.
– 20 –
Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 22 of 24 Page ID #:22

1
2
3

PRAYER FOR RELIEF
As to the First Cause of Action:
1.

For an order restraining Defendants from using, selling, or

4

displaying Ribeiro’s copyright in NBA 2K16 and subsequent NBA 2K

5

games;

6

2.

For an award of damages according to proof;

7

3.

For punitive and/or exemplary damages;

8

4.

For attorney’s fees and costs;

9
10

As to the Second Cause of Action:
5.

For an order restraining Defendants from using, selling, or

11

displaying Ribeiro’s copyright in NBA 2K16 and subsequent NBA 2K

12

games;

13

6.

For an award of damages according to proof;

14

7.

For punitive and/or exemplary damages;

15

8.

For attorney’s fees and costs;

16
17

As to the Third Cause of Action:
9.

For

an

order

restraining

Defendants

from

using,

18

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

19

likeness in NBA 2K16 and subsequent NBA 2K games;

20
21
22

10.

For an award of damages according to proof;

As to the Fourth Cause of Action:
11.

For

an

order

restraining

Defendants

from

using,

23

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

24

likeness in NBA 2K16 and subsequent NBA 2K games;

25

12.

For an award of damages according to proof; and

26

13.

For punitive and/or exemplary damages;

27
28
– 21 –
Complaint

Case 2:18-cv-10417 Document 1 Filed 12/17/18 Page 23 of 24 Page ID #:23

1
2

As to the Fifth Cause of Action:
14.

For an order restraining Defendants from advertising,

3

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

4

and likeness in NBA 2K16 and subsequent NBA 2K games;

5
6
7

15.

For an award of damages according to proof; and

As to the Sixth Cause of Action:
16.

For an order restraining Defendants from advertising,

8

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

9

and likeness in NBA 2K16 and subsequent NBA 2K games;

10

17.

For an award of damages according to proof;

11

18.

For punitive and/or exemplary damages;

12

19.

For attorney’s fees and costs;

13

As to All Causes of Action:

14

20.

For costs of suit; and

15

21.

For such other and further relief as the Court may deem

16
17
18
19
20

proper.
Dated: December 17, 2018

Respectfully Submitted,
Pierce Bainbridge Beck Price &
Hecht LLP

21
22
23
24

By: /s/Carolynn Kyungwon Beck
Carolynn Kyungwon Beck
Attorneys for Plaintiff
Alfonso Ribeiro

25
26
27
28
– 22 –
Complaint

Case 2:18-cv-10417 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
John M. Pierce (SBN 250443)
[e-mail]
Carolynn 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