Infringement Suit Won’t Hold Up New Dance Game

(CN) - A federal judge refused to halt the November release of OG International's "Get Up and Dance" video game, finding that a French gaming competitor has so far failed to support copyright-infringement claims.

France-based Ubisoft released its game, "Just Dance," in November 2009.

On Oct. 7, UK-based OG International and its subsidiary, O-Games, filed a complaint for declaratory relief, asking a federal judge to rule that its upcoming game, "Get Up and Dance," does not infringe on Ubisoft's products.

Ubisoft countered with a demand for an injunction and temporary restraining order, saying the upcoming video game violates its copyright and trade dress rights. It says OG's game copies two key components of "Just Dance" - the avatar representing the player and the dancing "instructor."

While U.S. District Judge Charles Breyer agreed that there are some similarities between the avatars in each game, he said Ubisoft did not clearly demonstrate "a likelihood that they are substantially similar - particularly given the functional reasons for some of the choices, such as the use of white skin."

During the game-making process, live dancers are filmed against a green screen, and the dancers' faces are painted with heavy white makeup to mitigate shadows and hide perspiration, as well as to create a more striking contrast against the black background, according to OG's declaration.

With regard to the dancing "instructor," which is represented by a stick figure, Breyer said the claim is not likely to succeed, "given that the stick-figure instructors are entitled only to thin protection, that other similar games use very similar instructors, and that they are not virtually identical."

The court also rejected Ubisoft's claims that the company would be irreparably harmed by OG's product, which has a retail price that is $10 less than "Just Dance."

Ubisoft is the third-largest independent video game publisher in the United States, selling hundreds of millions of games from 20 different franchises in its 25-year history. By contrast, OG's best-selling game has sold 78,000 copies.

The company has no direct accounts with any major game retailers and employs nine people worldwide.

"Get Up and Dance" is scheduled for release in the UK on Nov. 4 and the United States on Nov. 8.

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