## Facts

- Martial arts and performance professionals Philip Ahn, Elizabeth Malecki, and Katalin Zamiar provided filmed performances and likenesses used for characters in Mortal Kombat arcade games.
- Malecki modeled Sonja Blade (Mortal Kombat); Ahn modeled Shang Tsung (Mortal Kombat II); Zamiar modeled Kitana, Mileena, and Jade (Mortal Kombat II).
- Plaintiffs’ movements were videotaped, then digitized and incorporated into the coin-operated arcade games.
- Each plaintiff signed a written release authorizing use of their name/likeness and performance in connection with the manufacture, advertising, promotion, sale, and use of the arcade games, and allocating ownership of the results/proceeds of their services to Midway (treated as work made for hire).
- Plaintiffs alleged they were told they would receive additional compensation (e.g., bonuses/royalties) if the games succeeded and that the scope of use was misrepresented.
- After the arcade games’ success, defendants released home-console versions based on the arcade code; related copyrights were held by defendants involved in those versions.
- Plaintiffs refused to sign a later proposed release addressing broader uses and sued asserting, among other theories, right of publicity, copyright infringement based on joint authorship, and quantum meruit.
- Defendants moved for summary judgment on all counts; plaintiffs effectively narrowed the dispute to the publicity, copyright/joint-authorship, and quantum meruit theories.

## Issues

1. Whether the Copyright Act preempted plaintiffs’ state-law right-of-publicity claims based on use of their performances and likenesses in the games.
2. Whether plaintiffs’ filmed performances made them joint authors of the copyrighted game works, supporting a copyright infringement claim.
3. Whether plaintiffs could recover in quantum meruit for the value of their services despite the written release.

## Decision

- The court granted summary judgment for defendants on all counts.
- The right-of-publicity claims were preempted by the Copyright Act because the performances as used in the games fell within copyright subject matter and the asserted state-law rights were equivalent to § 106 rights.
- Plaintiffs failed to show joint authorship; defendants’ registrations were prima facie evidence of valid copyrights, and plaintiffs lacked requisite control and mutual intent to be co-authors.
- Quantum meruit recovery was barred because an enforceable contract (the release) governed the subject matter and plaintiffs received consideration under it.

## Legal Principles

- Copyright Act § 301 preempts a state-law claim when (1) the work falls within copyright subject matter and (2) the state-law right asserted is equivalent to the exclusive rights in § 106.
- A recorded performance fixed in a tangible medium and incorporated into a copyrighted audiovisual work satisfies the fixation and subject-matter requirements for preemption analysis.
- A right-of-publicity theory seeking to control reproduction, distribution, or display of a performer’s fixed image/performance in a copyrighted work is equivalent to § 106 rights and is preempted.
- Joint authorship requires more than contributing performance elements; it turns on evidence of shared creative control over the work and mutual intent to be co-authors.
- Copyright registration certificates are prima facie evidence of copyright validity and the facts stated therein.
- Quantum meruit is unavailable when a valid, enforceable contract covers the same services and provides consideration.

## Conclusion

The court held that performers whose recorded images and movements were digitized into a video game could not pursue state publicity claims because copyright law displaced them, could not claim co-authorship absent shared control and intent, and could not obtain quasi-contract compensation where a signed release governed payment and ownership.


Ahn v. Midway Mfg. Co., 965 F. Supp. 1134 (N.D. Ill. 1997)