In July 2020, Take-Two Interactive Software, Inc. filed a declaratory judgment lawsuit against rapper Brandom Sims (aka “Lil Playboi”). Take-Two initiated the lawsuit seeking a declaratory judgment regarding the dispute that NBA 2k19 allegedly infringes Lil Playboi’s copyrighted dance. Specifically, Sims is claiming that NBA 2k19 infringes a copyright for the “Crank That Dance,” portions of which can be seen in the following images provided in the initial complaint:

Case 4:20-cv-04441-JSW Document 1, pages 3-4.

Background

Sims has a copyright registration on an 82-second dance routine title “Crank That Dance.” The dance step depicted in NBA 2k19 is similar to one of the dance steps captured in the Crank That Dance registration. Take-Two explains that the depicted dance step is a celebratory dance lasting only 8 seconds. “When a user performs it, for eight seconds, his or her basketball player makes a lateral motion to the side four times. One leg is straight on the ground, while the other leg is outstretched. Both arms are held in the air in front of the head.” See Document 1, Paragraph 19.

However, the allegedly infringing portion of the Crank That Dance registration is limited to a dance step rather than an extended portion of the routine. In addition, variations of the dance step existed several years prior to Sims’ rendition in Yung Joc’s 2006 music video for the song “It’s Goin’ Down.”

Defenses

Take-Two alleges multiple defenses including (1) NBA2k19’s dance is different from the Crank That Dance step; (2) the Crank That Dance step is not Sims’ original creation; (3) dance steps are not individually copyrightable; and (4) the general idea of a motorcycle throttle-revving dance step is not copyrightable.

Analysis

It will be interesting to see the outcome of this case. Legal precedent suggests that this individual dance step is not copyrightable. In addition, there is a factual dispute as to whether Sims actually authored the Crank That Dance step. Thus, it is likely that Take-Two will come out on top in this case.