Another Lawsuit Over Fortnite Dances ‘Runs’ a Bit Off Course

Attribution @Sergey Galyonkin / WikimediaCommons

Epic Games seems to have a very hard time not getting sued regarding their widely-popular, but ‘maybe’ controversial video game, Fortnite. If the game developer isn’t being sued by individuals accusing the company of stealing their popular dances without consent, they’re being sued by other game developers who accuse Epic of copying their game style or mechanics.

In the latest lawsuit against Epic, Jaylen Brantley and Jared Nickens sued Epic, accusing Epic of copying the “running man” dance without consent. Brantley and Nickens (Plaintiffs) originally filed the lawsuit against the game developer in February 2019.

The Plaintiffs claimed (in their amended complaint) that they created the “running man” dance, that the dance is synonymous with them, and that they made the dance ‘viral’ after performing it on the Ellen DeGeneres show. They claimed that Epic took the “running man” dance and put it in the Fortnite game as a purchasable emote (under the same name) without Plaintiff’s permission, thereby “unfairly profit[ing] from exploiting Plaintiffs’ protected likeness.”

They sued Epic for invasion of the right of publicity, unfair competition, unjust enrichment, trademark infringement and dilution, and false designation of origin, seeking damages of $5,000,000 each for the trademark infringement, right to publicity, and unfair competition claims; exemplary damages of a minimum of $5,000,000 for the rights of publicity claim; attorney’s fees; punitive damages, and; a permanent injunction banning Epic from using the dance in Fortnite.

(Note: exemplary damages is another term for punitive damages, which essentially are damages awarded to a plaintiff mainly to punish the defendant for their conduct. It is a type of damage award given to the plaintiff in a lawsuit if it has been shown that the defendant’s conduct has been willful, malicious, violent, oppressive, fraudulent, wanton, or grossly reckless. Punitive damages may also be awarded as a deterrent to warn others against engaging in the same or similar conduct.)

The case was heard by Judge Paul W. Grimm, who was not at all satisfied with the Plaintiff’s arguments. Epic’s defense was that the Plaintiff’s publicity, unfair competition, unjust enrichment, and false designation claims were preempted by the U.S. Copyright Act. Epic also argued that Brantley and Nickens failed to allege a valid trademark for their trademark infringement and trademark dilution claims. Judge Grimm agreed completely with Epic’s arguments.

Judge Grimm pointed out that the U.S. Copyright Act “explicitly includes within its list of protected authorships, ‘choreographic works,’” and found that the “running man” dance “is within the “general subject matter” of copyright under a choreographic work,” thereby refuting the Plaintiff’s claim that the running man is “a “dance,” and not a “choreographic work,” and therefore it is not the subject of copyright.” The judge also pointed out that within that circuit of federal courts, “claims based on alleged misappropriation protect the same exclusive rights under the Copyright Act.”

The judge also mentioned Plaintiff’s failure to allege any state laws that their privacy/publicity claim is based on, and that the rights that they seek to enforce in their privacy/publicity claim are rights governed by the Copyright Act (thereby preempting that claim as well).

Judge Grimm also discussed the Plaintiffs common law and federal trademark unfair competition claims, holding that the Plaintiffs failed to cite to any particular section of the Lanham Act (i.e. the Trademark Act) to support their unfair competition claim, but instead “cite generally to 15 U.S.C. § 1051 et seq,” and dismissed both claims as Plaintiffs “fail[ed] to allege a trademark.” Furthermore, the judge restates that “federal trademark law defines the term “trademark” to include any “word, name, symbol, or device, or any combination thereof” that is used to identify and distinguish unique goods or services,” and that Plaintiffs failed to show how the running man dance is used to distinguish a unique good or service, stating that this argument “is too clever by half.”

Judge Grimm seems to be overwhelmingly unimpressed with Plaintiff’s arguments in the lawsuit, stating that “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,” basically stating that Brantley and Nickens are throwing random arguments at a wall, hoping that something will stick. Since the Plaintiffs brought their claims under the Trademark Act (and not the Copyright Act), their claims were preempted by the Copyright Act. Therefore, since they failed to properly state a claim upon which any type of relief could be granted, Judge Grimm dismissed all of the Plaintiff’s claims with prejudice.

This series of lawsuits over dances continues to raise the question of whether dance moves are protectable IP, an issue which seems to be becoming more and more prevalent. Hopefully, whether by the courts or by legislation, we will finally get a definitive answer to this question sooner rather than later.

The case is named Brantley et al. v. Epic Games Inc. et al. The case number is 8:19-cv-00594, and the lawsuit was heard in the U.S. District Court for the District of Maryland, Southern Division. You can read Judge Grimm’s opinion and order here. You can also check out Brantley and Nickens’amended complaint right here.

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