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Fortnite Creator Beats 'Running Man' Dance IP Suit

By Jose Angel Lamarque III

A federal court dismissed the lawsuit brought by former University of Maryland college basketball players Jaylen Brantley and Jared Nickens against Epic Games for the use of the "Running Man" dance that Brantley and Nickens argued they popularized as a "dance emote" in the popular free-to-play cooperative shooter-survival video game Fortnite. Brantley v. Epic Games, (D. Md. May 29, 2020) (Grimm, J.).

Brantley and Nickens posted videos of themselves performing the "Running Man" dance that went viral on social media in 2016 and later performed the dance in an appearance on The Ellen DeGeneres Show alongside others whose "Running Man Challenge" videos became popular. In their appearance on DeGeneres' show, Brantley told DeGeneres that Nickens first saw the "Running Man" dance himself in a video on Instagram. Epic Games has been the subject of many complaints and threatened lawsuits from actors, dancers and other individuals whose dance moves have gone viral on social media, including rapper and "Milly Rock" dance creator 2 Milly, as well as Scrubs actor Donald Faison, each of whose dance moves appear as "emotes" in Fortnite.

Brantley and Nickens claimed that Epic Games tried to profit from the popularity of their creativity and popular videos (which have amassed millions of views) when Epic added a "dance emote" that players can purchase for their characters to perform in-game (titled "Running Man") that resembles the "Running Man" dance.

Epic Games argued in its motion to dismiss that Brantley and Nickens' infringement claims improperly attempt to seek relief through trademark law. Epic Games further argued that the First Amendment bars Brantley and Nickens' requested relief, characterizing their use of the "Running Man" dance as a form of artistic expression. Brantley and Nickens responded that the "Running Man" dance's addition to the Fortnite game has no artistic relevance and that Epic Games included the dance as a "dance emote" in Fortnite solely for the purpose of making money from players who wanted to purchase the ability to do the dance in-game. Brantley and Nickens further claimed that Epic Games' addition of the "Running Man" dance emote in Fortnite led players to question whether Brantley and Nickens were involved in Fortnite's creation, or whether Epic Games had instead originated the dance.

Brantley and Nickens had dropped their initial claims of copyright infringement in light of Fourth Estate Public Benefit Corp. v. Wall-Street.com, which held that a plaintiff must register (and thereby receive Copyright Office approval of) a copyright before being able to sue for infringement of that copyright. If the "Running Man" dance at issue were to be considered a choreographic work, it would be governed by the Copyright Act and the plaintiffs would not be able to sue for copyright infringement because it had not been registered and approved by the Copyright Office. Section 102(a) of the Copyright Act governs choreographic works, whereas other portions of the Copyright Act govern other types of works (such as the "general subject matter" of copyright). The U.S. Copyright Office's Compendium of U.S. Copyright Practices distinguishes choreographic works "from non-copyrightable "de minimis" movements, dance steps, social dances, and simple routines. However, the Copyright Office's Compendium also identifies the "dividing line between copyrightable choreographic and uncopyrightable dance" as a "continuum, rather than a bright line." To avoid dismissal and the Fourth Estate requirements, Brantley and Nickens instead alleged claims of trademark infringement, trademark dilution, invasion of the right of privacy/publicity, unfair competition, unjust enrichment and false designation of origin.

In its dismissal of the case, the Court was silent as to the "continuum" of copyrightable and uncopyrightable dance and where the "Running Man" fell thereupon. Instead, the Court held that the "Running Man" was within the "general subject matter" of copyright under a choreographic work, as "the scope of copyright preemption is broader than that of copyright protection." The Court held that the Copyright Act preempted the Brantley and Nickens' claims of common law privacy violation, unfair competition, and unjust enrichment based on misappropriation of an original work, and dismissed their allegations of unfair competition and false designation of origin under the Lanham Act. Brantley and Nickens' claims of trademark infringement and trademark dilution were dismissed as well for failure to allege that the "Running Man" was a trademark that identified a good or service.

The Court concluded by describing Brantley and Nickens' claims as an attempt to "place the same square peg into eight round holes in search of a cause of action." In response to the ruling, Brantley and Nickens' attorney said that his clients may not be able to afford the costs of appealing, but commented that it seemed "un-American" for Epic Games to "profit off the backs of" his clients.

Jose Angel Lamarque III is a corporate associate at Debevoise & Plimpton in New York and a member of the firm's Intellectual Property and Mergers & Acquisitions groups. He is also active in the firm's Data Strategy & Security practice.

 
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