The makers of the popular Fortnite video game are doing the "happy” dance after a Maryland federal judge dismissed an intellectual property lawsuit alleging that Epic Games illegally copied the “Running Man” dance popularized by two former University of Maryland basketball players. According to U.S. District Judge Paul Grimm, the plaintiffs’ claims are preempted by the U.S. Copyright Act.

In Brantley et al. v. Epic Games, Inc., Plaintiffs Jaylen Brantley and Jared Nickens, the former basketball players, alleged that Defendant Epic Games, Inc. intentionally copied the movements of the “Running Man” dance, which they allegedly created, named, and popularized, and incorporated them as a feature of its highly popular online video game Fortnite. The suit included eight causes of action under common law and the federal Lanham Act for invasion of the right of privacy/publicity, unfair competition, unjust enrichment, trademark infringement, trademark dilution, and false designation of origin. On May 29, 2020, the court dismissed all of the claims.

IP Suit Over “Emote” Dance

Plaintiffs Brantley and Nickens allege that they incorporated the “Running Man” dance into breaks at University of Maryland basketball games, and that the dance subsequently went viral on social media. Their Running Man videos have over 100 million views on YouTube and thousands of people have posted videos of themselves performing the dance. The popularity of the “Running Man Challenge” allegedly exploded in part after a live performance of the dance by Brantley and Nickens on the Ellen DeGeneres Show.

Epic Games’ wildly popular Fortnite allows each player to select and create their own individualized avatar. The players then compete in a shooting match where the last player standing is declared the victor. At any point during the match, the player can command their online avatar to perform programmed movements called “emotes” which express the player’s emotions in the game. In July 2018, Epic Games produced a new emote called the “Running Man” emote. It could be purchased for roughly five dollars on the Fortnite electronic storefront or purchased as part of a package included with the latest installment of Fortnite. Brantley and Nickens allege that Epic Games created the Emote by impermissibly copying the movements of the “Running Man” dance and profited from the sale of the Emote on the Fortnite electronic storefront.

Court Dismisses IP Claims Against Epic Games

U.S. District Judge Paul Grimm of the Maryland district court dismissed all eight claims. The court held that the federal Copyright Act preempts Brantley and Nickens’ state claims for invasion of the right of privacy/publicity, common law unfair competition, and unjust enrichment. It similarly held that the Plaintiffs’ claims for Lanham Act unfair competition and false designation of origin are precluded by the Copyright Act. Finally, the court held that the Plaintiffs failed to plausibly allege a valid trademark for their claims for Lanham Act trademark infringement, common law trademark infringement, and Lanham Act trademark dilution.

“Plaintiffs seek to place the same square peg into eight round holes in search of a cause of action against Epic Games for its use of the Running Man dance in its game Fortnite,” Judge Grimm wrote. “But Plaintiffs’ claims that Epic Games copied the dance do not support any of their theories.”

The court first dismissed the Plaintiffs’ common law causes of action for invasion of the right of privacy/publicity, unfair competition, and unjust enrichment based on preemption under the Copyright Act. As Judge Grimm explained, courts apply a two-prong test for determining copyright preemption. First, the work must be within the scope of the subject-matter of copyright; second, the rights granted under state law must be equivalent to any exclusive rights within the scope of federal copyright.

With regard to the first prong, Judge Grimm concluded the Running Man is somewhere on the continuum between copyrightable choreography and uncopyrightable dance. However, given that the scope of copyright preemption is broader than that of copyright protection, he found it was sufficient to find that the Running Man is within the “general subject matter” of copyright under a choreographic work.

The court next concluded that the second prong of the preemption test was satisfied as well. “[H]ere Plaintiffs claim is based on Epic Games allegedly ‘capturing and digitally copying’ the Running Man dance to create the Fortnite emote that ‘allows the player’s avatars to execute the Running Man identically to Plaintiffs’ version,” Judge Grimm wrote. “This is squarely within the rights protected by the Copyright Act.”

This is but one of several lawsuits that have been filed against Epic Games over “emote” dances featured in Fortnite.

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If you have any questions or if you would like to discuss the matter further, please contact me, David Einhorn, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.