Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 1 of 22 Page ID #:1 1 2 3 4 5 6 7 8 9 10 Pierce Bainbridge Beck Price & Hecht LLP John M. Pierce (SBN 250443) jpierce@piercebainbridge.com Carolynn Beck (SBN 264703) cbeck@piercebainbridge.com Daniel Dubin(SBN 313235) ddubin@piercebainbridge.com 600 Wilshire Boulevard, Suite 500 Los Angeles, California 90017-3212 (213) 337-0065 Attorneys for Plaintiff Terrence Ferguson THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Terrence Ferguson, an individual, aka 2 Milly, Case No. Complaint for: 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. Demand for Jury Trial 27 28 Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 2 of 22 Page ID #:2 1 Plaintiff Terrence Ferguson, aka 2 Milly, (“Plaintiff” or “Ferguson”), 2 by and through his undersigned counsel, asserts the following claims 3 against Defendant Epic Games, Inc. (“Epic”) and Does 1 through 50 4 (collectively referred to as “Defendants”), and alleges as follows: 5 I. OVERVIEW 6 Through its unauthorized misappropriation of Ferguson’s 7 highly popular dance craze, the “Milly Rock,” in its video game, Fortnite 8 Battle Royale (“Fortnite”), Epic has unfairly profited from exploiting 9 Ferguson’s protected creative expression and likeness. 10 Ferguson, also known by the alter ego and stage name, “2 11 Milly,” is a professional rapper, who created the self-named Milly Rock 12 dance, which exploded in popularity following Ferguson’s 2014 release 13 of his hit song, also titled, “Milly Rock,” and its accompanying music 14 video that demonstrates the dance. 15 Defendants capitalized on the Milly Rock’s popularity, 16 particularly with its younger fans, by selling the Milly Rock dance as an 17 in-game purchase in Fortnite under the name “Swipe It,” which players 18 can buy to customize their avatars for use in the game. This dance was 19 immediately recognized by players and media worldwide as the Milly 20 Rock. 21 demonstrated by Ferguson, Epic did not credit Ferguson nor seek his 22 consent to use, display, reproduce, sell, or create a derivative work 23 based upon Ferguson’s Milly Rock dance or likeness. Although identical to the dance created, popularized, and 24 Since being released in or around September 2017, Fortnite 25 has become among the most popular video games ever with sales far in 26 excess of $1 billion. Indeed, Fortnite made approximately $318 million 27 in May 2018 alone, the “biggest month ever for a video game.” As a free- 28 to-play game, Fortnite derives its sales exclusively through these types –1– Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 3 of 22 Page ID #:3 1 of in-game purchases. Epic should not be able to profit from Ferguson’s 2 fame and hard work by its intentional misappropriation of Ferguson’s 3 original content or likeness. 4 damages, including, but not limited to, Epic’s profits attributed to its 5 improper use of the Milly Rock and Ferguson’s likeness. 6 7 8 II. Ferguson seeks injunctive relief and THE PARTIES Ferguson resides in Brooklyn, New York. He is better known as the popular rapper, 2 Milly. 9 Epic is a North Carolina business corporation with its 10 principal place of business at 620 Crossroads Boulevard, Cary, NC 11 27518. Epic is the creator and developer of the Fortnite video game 12 franchise, which was first released in July 2017. 13 III. SUBJECT MATTER JURISDICTION AND 14 VENUE 15 The Court has subject matter jurisdiction over this action 16 pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332 17 (diversity), and 28 U.S.C. § 1367 (supplemental jurisdiction). 18 Venue is proper in this District under A) 28 U.S.C. § 19 1391(b)(2) (federal question jurisdiction), because a substantial part of 20 the events or omissions giving rise to the claim occurred in this District; 21 and B) 28 U.S.C. §§ 1391(b)(1) and (c) (personal jurisdiction), because 22 all defendants are subject to personal jurisdiction in this State and at 23 least one in this District. 24 IV.FACTUAL BACKGROUND 25 2 Milly and the Creation of the Milly Rock 26 Raised in the New York City borough of Brooklyn, Ferguson 27 has been rapping with his childhood friends since he was 13 years old 28 under the name “2 Milly.” Ferguson’s music focuses on his life as a –2– Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 4 of 22 Page ID #:4 1 rapper growing up in a rough, predominantly African-American 2 Brooklyn neighborhood, and emphasizes his unique style and 3 perspectives. 4 In 2011, four years before releasing the “Milly Rock” single, 5 Ferguson created a dance, which he later named the Milly Rock after 6 himself, while listening and dancing to music with his friends. The 7 dance is distinctive and immediately recognizable. 8 Since creating the dance, Ferguson incorporated it into his 9 performances around New York City. Ferguson also posted videos of 10 himself and his friends, who later formed the rap group, Stack Paper, 11 performing the dance on YouTube and other social media platforms 12 including Instagram and Facebook. 13 In August 2014, Ferguson released “Milly Rock,” a rap that 14 celebrates the dance he created years ago. The song was accompanied 15 by a music video posted on YouTube, where Ferguson is depicted 16 performing the dance that he named after his stage name, 2 Milly, with 17 his friends in his hometown of Brooklyn. The hook of the song features 18 Ferguson, as 2 Milly, rapping the lyric, “I Milly Rock on any block.” The 19 Milly Rock song made the iTunes top 200 chart in its first week and was 20 the most added single on urban radio. 21 The song exploded in popularity the following summer as 22 various celebrities, including Rihanna, Chris Brown, and Wiz Khalifa 23 posted themselves performing the dance on social media. By the end of 24 the 2015 summer, the Milly Rock music video had over one million 25 views on YouTube and thousands of people began posting their own 26 videos showing themselves performing the Milly Rock. The video now 27 has nearly 18 million views on YouTube. The video can be found at 28 https://www.youtube.com/watch?v=PMzDoFuVgRg. –3– Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 5 of 22 Page ID #:5 1 Since its release in 2014 and its rise to fame in 2015, the 2 Milly Rock song and dance maintained its popularity. 3 continues to successfully use the Milly Rock commercially. Ferguson 4 performs the Milly Rock song and dance at concerts, events and 5 festivals. Indeed, in 2015, the recording artist, Jacques Webster II, also 6 known as Travis Scott, performed the Milly Rock, alongside Ferguson, 7 at the popular Summer Jam Festival. Moreover, other artists have 8 sought and been granted licenses from Ferguson in exchange for 9 compensation to perform the Milly Rock in their concerts and 10 Ferguson performances. 11 The Milly Rock has become synonymous with Ferguson, who 12 is unanimously credited with creating the dance that bears his stage 13 name, and who performs the Milly Rock song and dance at every 14 performance. Ferguson has also been interviewed several times about 15 the creation of the Milly Rock and how to properly perform it. 16 Accordingly, the Milly Rock is a part of Ferguson’s identity and the 17 dance’s unique movements readily evoke imagery of Ferguson’s Milly 18 Rock music video. 19 Fortnite: The Most Popular Video Game Ever 20 Even prior to releasing Fortnite, which would become among 21 the most popular and successful video games ever, Epic had already 22 developed two popular video game franchises: Unreal and Gears of 23 War. Since releasing the first Gears of War game in 2005, Epic released 24 several subsequent Gears of War video games, and the franchise has 25 made has made over $1 billion in total sales. 26 At or around 2011, following the release of the third Gears 27 of War installment, Fortnite began from an Epic internal video game 28 hackathon, or a gathering of Epic developers to brainstorm ideas and –4– Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 6 of 22 Page ID #:6 1 create games in a short period. Although the Fortnite game was not 2 developed during the hackathon, the idea to merge building games (i.e., 3 Minecraft) and shooter games (i.e., Gears of War or Call of Duty) 4 emerged during the Hackathon. 5 On or around July 2017, Epic released the initial version of 6 Fortnite as a paid early-access video game. However, by September 7 2017, after PlayerUnknown’s Battlegrounds—a game which occupied 8 the same “battle royale” genre as Fortnite—became a worldwide 9 success, Epic released Fortnite Battle Royale, a free-to-play battle 10 royale third person shooting game on the Windows, macOS, PlayStation 11 4 and Xbox One platforms. Epic subsequently released Fortnite on the 12 iOS, Nintendo and Android platforms on April 2, 2018, June 12, 2018, 13 and August 9, 2018, respectively. 14 Similar to PlayerUnknown’s Battlegrounds, Fortnite 15 utilizes the battle royale format where up to 100 players, alone, in pairs, 16 or groups, compete to be the last player or group alive. 17 As a free-to-play video game, Epic allows players to 18 download and play Fortnite for free. Fortnite is supported by in-game 19 transactions where players can purchase virtual currency, called 20 “Vinderbucks” or “V-Bucks.” 21 purchase customizations for their in-game avatars, including new 22 characters, pickaxe modifications, glider skins, clothes and emotes 23 (dances or movements). Fortnite also sells “Battle Passes” or additional 24 levels that allow you to unlock skins, gliders, and emotes unique to that 25 Pass. Fortnite offers four pricing levels for purchasing V-Bucks: The players in turn use V-Bucks to 26 1) 1,000 V-Bucks for $9.99; 27 2) 2,500 (+300 Bonus) V-Bucks for $24.99; 28 3) 6,000 (+1,500 Bonus) V-Bucks for $59.99; or –5– Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 7 of 22 Page ID #:7 1 4) 10,000 (+3,500 Bonus) V-Bucks for $99.99. 2 There are four types of emotes: common emotes, uncommon 3 emotes, rare emotes, and epic emotes. The rarer the emote, the more 4 expensive or harder it is to obtain. Uncommon emotes cost 200 V- 5 Bucks. Rare emotes cost 500 V-Bucks. And Epic emotes cost 800 V- 6 Bucks. 7 To start, Fortnite provides each player with the Dance 8 Moves emote, a common emote, for no compensation. Players can then 9 obtain other emotes by purchasing and playing additional levels in 10 Battle Passes (950 V-Bucks each) that come with emotes unique to that 11 Pass, or by purchasing certain emotes directly with V-Bucks. On some 12 occasions, Fortnite sells Battle Pass emotes directly, without requiring 13 the player to purchase the Battle Pass. 14 Emotes are incredibly popular and are fundamental to 15 Fortnite’s success. Players purchase emotes, alongside clothing and 16 skins, to personalize their Fortnite experience. 17 become popular outside Fortnite. Professional athletes in soccer and 18 other sports have based their celebrations on Fortnite emotes. Young 19 adults, teenagers, and kids also post videos of themselves on YouTube 20 and social media performing emotes under various hashtags, including 21 #fortnitedance or #fortnitevideos. Emotes have also 22 Upon information and belief, Epic creates emotes by copying 23 and coding dances and movements directly from popular videos, movies, 24 and television shows without consent. Epic does so by coding still 25 frames of the source material. For example, upon and information and 26 belief, Epic coded the “Ride the Pony” emote, frame-by-frame, from the 27 “Gangnam Style” dance made famous by the Korean entertainer, Psy. 28 The Ride the Pony emote and Psy's dance are identical in every respect. –6– Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 8 of 22 Page ID #:8 1 On information and belief, Epic did not obtain Psy's authorization for 2 copying the dance and including it in Fortnite. 3 However, Epic has consistently sought to exploit African- 4 American talent in particular in Fortnite by copying their dances and 5 movements. Epic has copied the dances and movements of numerous 6 African-American performers, including, for example, the dance from 7 the 2004 Snoop Dogg music video, “Drop It Like It’s Hot” (named the 8 “Tidy” emote), Alfonso Ribeiro’s performance of his famous “Carlton” 9 dance on The Fresh Prince of Bel-Air television show (named the 10 “Fresh” emote), the dance performed by Will Smith on the same 11 television show (named the “Rambunctious” emote), the dance in 12 Marlon Webb’s popular “Band of the Bold” video (named the “Best 13 Mates” emote), Donald Faison’s signature dance seen on the NBC 14 television show Scrubs (named the “Dance Moves” emote), and, most 15 pertinent here, Terrence Ferguson’s Milly Rock dance. 16 information and belief, Epic did not seek consent or authorization to use 17 any of these movements or dances. Upon 18 Soon after its release, Fortnite became an international 19 phenomenon. The game eclipsed 10 million players merely two weeks 20 after its release; 125 million players by July 2018. In November 2018, 21 Bloomberg announced that Fortnite had 200 million player accounts 22 across all platforms. 23 Fortnite’s popularity has translated into record sales for 24 Epic. 25 generated between $1 billion to $2 billion in revenue through in-game 26 purchases such as emotes. In May 2018, Fortnite broke its own record 27 by generating approximately $318 million in revenue, the biggest 28 month ever for a video game. In fact, nearly 80 million people played Analysts have estimated that since its release, Fortnite has –7– Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 9 of 22 Page ID #:9 1 Fortnite in August 2018. Because of Fortnite’s success, Epic’s estimated 2 valuation rose from about $825 million to about $5 billion. Bloomberg 3 estimates that Epic’s valuation could grow to $8.5 billion by 2018’s end. 4 Upon information and belief, Epic will likely continue 5 adding popular emotes to Fortnite without the artists’ or creators’ 6 consent or approval to attract more players and add to its ever-growing 7 revenue. 8 Fortnite’s Unauthorized Use of the Milly Rock 9 On July 12, 2018, Fortnite released its Season 5 Battle Pass. 10 Players could purchase the Battle Pass, alongside its accompanying 11 emotes and other customizations, for the regular price of 950 V-Bucks. 12 As part of the Season 5 Pass, Fortnite offered a new rare emote that it 13 called “Swipe It.” According to Fortnite, players can obtain the Swipe 14 It emote as a reward from Tier 63 of the Season 5 Battle Pass. Also, on 15 certain occasions, Fortnite sold the Swipe It emote separately for 500 16 V-Bucks. 17 The “Swipe It” emote is identical to Ferguson’s Milly Rock 18 dance. 19 perform the dance during Fortnite gameplay. The reaction from many 20 players worldwide was immediate recognition of the emote as 21 embodying the “Milly Rock” while others likely believed it was Epic’s 22 original creation. If obtained or purchased, the Fortnite player’s avatar can 23 Upon information and belief, Epic intentionally developed 24 the Swipe It emote to intentionally mimic Ferguson performing the 25 Milly Rock. In fact, players had asked for it by name in various online 26 forums relating to Fortnite. 27 28 –8– Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 10 of 22 Page ID #:10 1 Epic did not seek to obtain Ferguson’s authorization or 2 consent for its use of his likeness and the Milly Rock for the Swipe It 3 emote. 4 Moreover, Ferguson did not give Epic express or implied 5 consent for its use of his likeness and the Milly Rock for the Swipe It 6 emote. Epic also did not compensate Ferguson for its use of his likeness 7 and the Milly Rock for the Swipe It emote. 8 Upon information and belief, Epic added the Swipe It emote 9 to intentionally exploit the popularity of Ferguson, Ferguson’s Milly 10 Rock song, and the Milly Rock dance without providing Ferguson any 11 form of compensation. 12 Epic profited from its improper misappropriation of the 13 Milly Rock and Ferguson’s likeness by, inter alia: 14 infringing Swipe It emote directly to players; 2) selling the Season 5 15 Battle Pass that contains the Swipe It emote; 3) advertising the Swipe 16 It emote to attract additional players, including 2 Milly’s fans or those 17 persons familiar with the Milly Rock to play Fortnite and make in-game 18 purchases; 4) staying relevant to its current players to incentivize those 19 players to continue playing Fortnite; 5) impliedly representing that 20 Ferguson consented to Epic’s use of his likeness; 6) erroneously cause 21 the association of the Swipe It with the Milly Rock; 7) creating the false 22 impression that 2 Milly endorsed Fortnite; and 8) inducing and/or 23 contributing to Fortnite players’ avatars performing the Milly Rock 24 dance. 1) selling the 25 Upon information and belief, Epic uses the Milly Rock, and 26 other dances, to create the false impression that Epic started these 27 dances and crazes or that the artist who created them is endorsing the 28 game. Indeed, players have posted thousands of videos of themselves –9– Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 11 of 22 Page ID #:11 1 performing the “Swipe It” emote with the hashtag, #fortnitedance, 2 without referencing the Milly Rock or crediting Ferguson as the dance’s 3 creator and owner. 4 actively and knowingly directs, causes, induces, and encourages others, 5 including, but not limited to, its players, designers, suppliers, 6 distributors, resellers, software developers, and repair providers, to 7 misappropriate Ferguson’s likeness and the Milly Rock dance. Accordingly, upon information and belief, Epic 8 Ferguson has stated in interviews that he does not consent 9 or approve Epic’s use of his likeness and the Milly Rock for the Swipe It 10 emote. Other prominent artists, including Chancelor Bennett, known 11 as Chance the Rapper, have also publicly disapproved of Epic’s 12 practices, and advocated for Epic sharing profits with the artists that 13 created these dances. 14 Accordingly, Epic made a fortune from unlawfully and 15 unfairly misappropriating Ferguson’s and other artists’ creative 16 expression and likeness without crediting or compensating these 17 artists. 18 further using his likeness and the Milly Rock, and to recover the profits 19 rightfully owed to him. Ferguson thus bring this lawsuit to prevent Fortnite from 20 FIRST CAUSE OF ACTION 21 (For Direct Infringement of Copyright Against All Defendants) 22 Ferguson hereby repeats and realleges the allegations set 23 forth in paragraphs 1 through 38, above, as though fully set forth 24 herein. 25 On or around August 2014, Ferguson’s “Milly Rock” music 26 video was published to YouTube where it can be accessed by millions of 27 people. The Milly Rock music video shows Ferguson, as 2 Milly, rapping 28 and performing the Milly Rock dance with his friends. – 10 – Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 12 of 22 Page ID #:12 1 Ferguson is the undisputed creator of the wildly popular and 2 immediately recognizable Milly Rock dance. Ferguson’s videos are the 3 original depictions of the Milly Rock dance. 4 Ferguson is in the process of registering the Milly Rock 5 dance with the United States Copyright Office. On December 4, 2018, 6 Ferguson submitted an application for copyright registration of the 7 Milly Rock dance and assigned Copyright Office case number 1- 8 7192939861. 9 Defendants have infringed and continue to infringe 10 Ferguson’s copyrights in the Milly Rock by selling the Milly Rock dance 11 emote as an in-game purchase, under the name “Swipe It” that, if 12 purchased, a player can use to make his or her avatar perform during 13 Fortnite gameplay; substantially copying the Milly Rock in digital form 14 to the Fortnite game; advertising the Milly Rock in its promotional 15 materials; and creating the Swipe It emote as a derivative work of the 16 Milly Rock. 17 Defendants did not seek to obtain Ferguson’s permission for 18 its use of the Milly Rock for the Swipe It emote. Nor have Defendants 19 compensated or credited Ferguson for their use of the Milly Rock. 20 Moreover, Defendants actively and knowingly directed, 21 caused, induced, and encouraged others, including, but not limited to, 22 its players, designers, suppliers, distributors, resellers, software 23 developers, and repair providers, to misappropriate Ferguson’s likeness 24 and the Milly Rock dance. 25 Defendants’ acts of infringement have been willful, 26 intentional, and purposeful, in disregard of and with indifference to 27 Plaintiff’s rights. 28 – 11 – Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 13 of 22 Page ID #:13 1 Defendants’ willful and continued unauthorized use of the 2 Milly Rock for commercial gain has caused and will continue to cause 3 confusion and mistake by leading the public to erroneously associate 4 the Swipe It emote offered by Epic with the Milly Rock in violation of 5 17 U.S.C. §§ 101 et seq. 6 As a result of Defendants’ conduct, Ferguson has been 7 damaged by being precluded from receiving his rightful share of the 8 profits earned by Epic for its improper and unlicensed use of Ferguson’s 9 exclusive copyrights in the Milly Rock dance in Fortnite. 10 Ferguson is entitled to permanent injunctive relief 11 preventing Defendants, and their officers, agents, and employees, and 12 all related persons from further using the Milly Rock and engaging in 13 other acts in violation of Copyright law. 14 As a direct and proximate result of Defendants’ 15 infringement of Plaintiff’s copyrights and exclusive rights under 16 copyright, Ferguson is also entitled to recover damages, including 17 attorneys’ fees, and any profits obtained by Defendants as a result of 18 the infringements alleged above, in an amount according to proof to be 19 determined at the time of trial. 20 In doing the acts herein alleged, Defendants acted 21 fraudulently, willfully, and with malice, and Ferguson is therefore 22 entitled to punitive damages according to proof at the time of trial. 23 SECOND CAUSE OF ACTION 24 (For Contributory Infringement of Copyright Against All 25 Defendants) 26 Ferguson hereby repeats and realleges the allegations set 27 forth in paragraphs 1 through 51, above, as though fully set forth 28 herein. – 12 – Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 14 of 22 Page ID #:14 1 Ferguson is in the process of registering the Milly Rock 2 dance with the United States Copyright Office. On December 4, 2018, 3 Ferguson submitted an application for copyright registration of the 4 Milly Rock dance and assigned Copyright Office case number 1- 5 7192939861. 6 Defendants have infringed and continue to infringe 7 Ferguson’s copyrights in the Milly Rock by selling the Milly Rock dance 8 emote as an in-game purchase, under the name “Swipe It” that, if 9 purchased, a player can use to make his or her avatar perform during 10 Fortnite gameplay; substantially copying the Milly Rock in digital form 11 to the Fortnite game; advertising the Milly Rock in its promotional 12 materials; and creating the Swipe It emote as a derivative work of the 13 Milly Rock. 14 By providing the Swipe It emote necessary for its players to 15 commit direct copyright infringement, Defendants has and continues to 16 materially 17 distributions by its players of the Milly Rock. contribute to the unauthorized reproductions and 18 Defendants did not seek to obtain Ferguson’s permission for 19 its use of the Milly Rock for the Swipe It emote. Nor have Defendants 20 compensated or credited Ferguson for their use of the Milly Rock. 21 Moreover, Defendants actively and knowingly directed, 22 caused, induced, and encouraged others, including, but not limited to, 23 its players, designers, suppliers, distributors, resellers, software 24 developers, and repair providers, to misappropriate Ferguson’s likeness 25 and the Milly Rock dance. 26 Defendants’ acts of infringement have been willful, 27 intentional, and purposeful, in disregard of and with indifference to 28 Plaintiff’s rights. – 13 – Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 15 of 22 Page ID #:15 1 Defendants’ willful and continued unauthorized use of the 2 Milly Rock for commercial gain has caused and will continue to cause 3 confusion and mistake by leading the public to erroneously associate 4 the Swipe It emote offered by Epic with the Milly Rock in violation of 5 17 U.S.C. §§ 101 et seq. 6 As a result of Defendants’ conduct, Ferguson has been 7 damaged by being precluded from receiving his rightful share of the 8 profits earned by Epic for its improper and unlicensed use of Ferguson’s 9 exclusive copyrights in the Milly Rock dance in Fortnite. 10 Defendants’ conduct is causing and, unless enjoined and 11 restrained by this Court, will continue to cause Plaintiff great and 12 irreparable injury that cannot be compensated or measured in money. 13 Plaintiff has no adequate remedy at law. Pursuant to 17 U.S.C. § 502, 14 Plaintiff is entitled to injunctive relief, prohibiting further contributory 15 infringements of Plaintiff’s copyrights. 16 As a direct and proximate result of Defendants’ 17 infringement of Plaintiff’s copyrights and exclusive rights under 18 copyright, Ferguson is also entitled to recover damages, including 19 attorneys’ fees, and any profits obtained by Defendants as a result of 20 the infringements alleged above, in an amount according to proof to be 21 determined at the time of trial. 22 In doing the acts herein alleged, Defendants acted 23 fraudulently, willfully, and with malice, and Ferguson is therefore 24 entitled to punitive damages according to proof at the time of trial. 25 THIRD CAUSE OF ACTION 26 (For Violation of the Right of Publicity Under California 27 Common Law Against All Defendants) 28 – 14 – Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 16 of 22 Page ID #:16 1 Ferguson hereby repeats and realleges the allegations set 2 forth in paragraphs 1 through 63, above, as though fully set forth 3 herein. 4 Through their use of Milly Rock dance as an in-game dance 5 emote that can be purchased, Defendants misappropriated Ferguson’s 6 identity. The Swipe it emote depicts Ferguson performing the Milly 7 Rock dance. 8 Swipe It emote by capturing and digitally copying Ferguson performing 9 the Milly Rock. Defendants then utilized the digital copy to create code 10 that, if purchased, allows player avatars to perform the Milly Rock 11 dance. Upon information and belief, Defendants created the 12 Defendants did not seek or obtain Ferguson’s authorization 13 or consent for its use of his likeness for the Swipe It emote. Nor have 14 Defendants compensated or credited Ferguson for their use of the Milly 15 Rock. 16 Defendants used Ferguson’s likeness to generate significant 17 wealth by: 1) selling the infringing Swipe It emote directly to players; 18 2) selling the Season 5 Battle Pass that contains the Swipe It emote; 3) 19 advertising the Swipe It emote to attract additional players, including 20 2 Milly’s fans or those persons familiar with the Milly Rock to play 21 Fortnite and make in-game purchases; 4) staying relevant to its current 22 players to incentivize those players to continue playing Fortnite; 5) 23 impliedly representing that Ferguson consented to Epic’s use of his 24 likeness; 6) erroneously cause the association of the Swipe It with the 25 Milly Rock; 7) creating the false impression that 2 Milly endorsed 26 Fortnite; and 8) inducing and/or contributing to Fortnite players’ 27 avatars performing the Milly Rock dance. 28 – 15 – Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 17 of 22 Page ID #:17 1 As the rapper, 2 Milly, Ferguson exploits his identity by 2 performing at concerts, events and festivals. Ferguson was damaged by 3 Defendants’ conduct as he was prevented from reaping the profits of 4 licensing his likeness to Defendants for commercial gain. 5 Defendants’ conduct caused and will continue to cause 6 confusion and mistake by leading the public to erroneously believe that 7 Ferguson consented to the use of his likeness in the Fortnite game. 8 Ferguson is entitled to permanent injunctive relief 9 preventing Defendants, and their officers, agents, and employees, and 10 all related persons from further using his likeness. 11 Ferguson is also entitled to recover damages, including any 12 profits obtained by Defendants as a result of the infringements alleged 13 above, in an amount according to proof to be determined at the time of 14 trial. 15 FOURTH CAUSE OF ACTION 16 (For Violation of the Right of Publicity Under Cal. Civ. Code § 17 3344 Against All Defendants) 18 Ferguson hereby repeats and realleges the allegations set 19 forth in paragraphs 1 through 71, above, as though fully set forth 20 herein. 21 Through their use of Milly Rock dance as an in-game dance 22 emote that can be purchased, Defendants misappropriated Ferguson’s 23 identity. The Swipe it emote depicts Ferguson performing the Milly 24 Rock dance. 25 Swipe It emote by capturing and digitally copying Ferguson performing 26 the Milly Rock. Defendants then utilized the digital copy to create code 27 that, if purchased, allows player avatars to perform the Milly Rock 28 dance. Upon information and belief, Defendants created the – 16 – Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 18 of 22 Page ID #:18 1 Defendants did not seek or obtain Ferguson’s authorization 2 or consent for its use of his likeness for the Swipe It emote. Nor have 3 Defendants compensated or credited Ferguson for their use of the Milly 4 Rock. 5 Defendants used Ferguson’s likeness to generate significant 6 wealth by: 1) selling the infringing Swipe It emote directly to players; 7 2) selling the Season 5 Battle Pass that contains the Swipe It emote; 3) 8 advertising the Swipe It emote to attract additional players, including 9 2 Milly’s fans or those persons familiar with the Milly Rock to play 10 Fortnite and make in-game purchases; 4) staying relevant to its current 11 players to incentivize those players to continue playing Fortnite; 5) 12 impliedly representing that Ferguson consented to Epic’s use of his 13 likeness; 6) erroneously cause the association of the Swipe It with the 14 Milly Rock; 7) creating the false impression that 2 Milly endorsed 15 Fortnite; and 8) inducing and/or contributing to Fortnite players’ 16 avatars performing the Milly Rock dance. 17 As the rapper, 2 Milly, Ferguson exploits his identity by 18 performing at concerts, events and festivals. Ferguson was damaged by 19 Defendants’ conduct as he was prevented from reaping the profits of 20 licensing his likeness to Defendants for commercial gain. 21 Defendants’ conduct caused and will continue to cause 22 confusion and mistake by leading the public to erroneously believe that 23 Ferguson consented to the use of his likeness in the Fortnite game. 24 Ferguson is entitled to permanent injunctive relief 25 preventing Defendants, and their officers, agents, and employees, and 26 all related persons from further using his likeness. 27 Ferguson 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-10110 Document 1 Filed 12/05/18 Page 19 of 22 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 Ferguson hereby repeats and realleges the allegations set 6 forth in paragraphs 1 through 79, above, as though fully set forth 7 herein. 8 By misappropriating Ferguson’s copyright and likeness 9 through the improper use of the Milly Rock dance, Defendants have 10 engaged in business acts or practices that constitute unfair competition 11 in violation of Cal. Bus. & Prof. Code. § 17200. 12 As a result of Defendants’ violations, Defendants have 13 unjustly enriched themselves by: 1) selling the infringing Swipe It 14 emote directly to players; 2) selling the Season 5 Battle Pass that 15 contains the Swipe It emote; 3) advertising the Swipe It emote to attract 16 additional players, including 2 Milly’s fans or those persons familiar 17 with the Milly Rock to play Fortnite and make in-game purchases; 4) 18 staying relevant to its current players to incentivize those players to 19 continue playing Fortnite; 5) impliedly representing that Ferguson 20 consented to Epic’s use of the Milly Rock and his likeness; 6) erroneously 21 cause the association of the Swipe It with the Milly Rock; 7) creating 22 the false impression that 2 Milly endorsed Fortnite; and 8) inducing 23 and/or contributing to Fortnite players’ avatars performing the Milly 24 Rock dance. 25 As a result of Defendants’ conduct, Ferguson has been 26 damaged by being precluded from receiving his rightful share of the 27 profits from selling or licensing his exclusive copyright in the Milly Rock 28 dance. – 18 – Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 20 of 22 Page ID #:20 1 Moreover, Ferguson was damaged by Defendants’ conduct as 2 he was prevented from reaping the profits of licensing his likeness to 3 Defendants for commercial gain. 4 Ferguson is entitled to permanent injunctive relief 5 preventing Defendants, and their officers, agents, and employees, and 6 all related persons from further using his likeness. 7 Ferguson is also entitled to recover damages, including any 8 profits obtained by Defendants as a result of the infringements alleged 9 above, in an amount according to proof to be determined at the time of 10 trial. 11 12 13 14 PRAYER FOR RELIEF As to the First Cause of Action: 1. For an order restraining Defendants from using, selling, or displaying Ferguson’s copyright in its Fortnite game; 15 2. For an award of damages according to proof; 16 3. For punitive and/or exemplary damages; 17 4. For attorney’s fees and costs; 18 19 20 As to the Second Cause of Action: 5. For an order restraining Defendants from using, selling, or displaying Ferguson’s copyright in its Fortnite game; 21 6. For an award of damages according to proof; 22 7. For punitive and/or exemplary damages; 23 8. For attorney’s fees and costs; 24 25 26 27 As to the Third Cause of Action: 9. For an order restraining Defendants from using Ferguson’s likeness in its Fortnite game; 10. For an award of damages according to proof; 28 – 19 – Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 21 of 22 Page ID #:21 1 2 3 As to the Fourth Cause of Action: 11. For an order restraining Defendants from using, selling, or displaying Ferguson’s copyright in its Fortnite game; 4 12. For an award of damages according to proof; and 5 13. For punitive and/or exemplary damages; 6 7 8 9 10 As to the Fifth Cause of Action: 14. For an order restraining Defendants from using, selling, or displaying Ferguson’s copyright in its Fortnite game; 15. For an award of damages according to proof; and As to All Causes of Action: 11 16. For costs of suit; and 12 17. For such other and further relief as the Court may deem 13 14 15 16 17 18 19 20 21 proper. Dated: December 5, 2018 Respectfully Submitted, Pierce Bainbridge Beck Price & Hecht LLP By: /s/Carolynn Beck Carolynn Beck Attorneys for Plaintiff Terrence Ferguson 22 23 24 25 26 27 28 – 20 – Complaint Case 2:18-cv-10110 Document 1 Filed 12/05/18 Page 22 of 22 Page ID #:22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 JURY TRIAL Plaintiff Terrence Ferguson requests a trial by jury on all issues to which it is entitled a jury. Dated: December 5, 2018 Respectfully Submitted, Pierce Bainbridge Beck Price & Hecht LLP By: /s/Carolynn Beck Carolynn Beck John M. Pierce (SBN 250443) jpierce@piercebainbridge.com Carolynn Beck (SBN 264703) cbeck@piercebainbridge.com Daniel Dubin(SBN 313235) ddubin@piercebainbridge.com 600 Wilshire Boulevard, Suite 500 Los Angeles, California 90017-3212 (213) 337-0065 David L. Hecht (NY4695961) (pro hac vice admission pending) dhecht@piercebainbridge.com Maxim Price (NY684858) (pro hac vice admission pending) mprice@piercebainbridge.com Yi Wen Wu (NY5294475) (pro hac vice admission pending) wwu@piercebainbridge.com 20 West 23rd Street, Fifth Floor New York, New York 10010 (212) 484-9866 Attorneys for Plaintiff Terrence Ferguson 28 – 21 – Complaint