Ahn v. Midway Manufacturing Co.

Philip Ahn, Elizabeth Malecki, and Katalin Zamiar (models) (defendants) provided their images, names, and performances for various characters in the coin-operated arcade format of the Mortal Kombat and Mortal Kombat II video games. Midway Manufacturing Company (Midway) (defendant) sold coin-operated amusement games and licensed home video games, including the Mortal Kombat titles. Williams Electronics Games, Inc. (Williams) (defendant) worked with Midway to design, manufacture, and sell coin-operated video games. The models signed release forms with Midway before videotaping and authorized Midway to film their martial-arts choreography for use in the manufacturing, design, promotion, and use of the coin-operated Mortal Kombat games. The agreement made Midway the sole owner of all models’ copyrightable expressions as works for hire and permitted Midway to use the models’ likenesses in any copyright connected to the coin-operated games. Because arcade games were successful, Acclaim Entertainment, Inc. (Acclaim), Nintendo of America, Inc. (Nintendo), and Sega of America, Inc. (Sega) (collectively, companies) (defendants) worked with Midway and released the home video-game version of the Mortal Kombat games, both of which were based on the source code of the arcade games. The companies filed and secured exclusive copyrights to the exclusion of the models. Midway and Williams met with the models and offered a second release agreement because various companies were interested in using the models’ images. The models refused to sign and filed suit against the game companies. The models’ complaint was based on alleged violations of their right to publicity and the Copyright Act of 1976. The court found that the Copyright Act preempted any right-of-publicity claims because the works were original works of authorship and fixed in a tangible, videotaped form. The court also found that the works were the subject matter of copyright and that the right of publicity was equivalent to rights under the Copyright Act. The court then addressed the Copyright Act claim, in which the models argued that the software for the games was a joint work.