Brantley v. Epic Games, Inc.

District court dismisses unfair competition, trademark and related claims targeting Epic Games’ use of plaintiffs’ “Running Man” dance move in Fortnite video game, holding claims are preempted by Copyright Act and fail to allege protectable trademark. 

Plaintiffs Jaylen Brantley and Jared Nickens claimed to have invented, named and popularized a dance called the “Running Man” while college basketball players at the University of Maryland. The dance went viral on social media, and culminated in an appearance by the duo on the television show Ellen. Defendant Epic Games is the creator of the popular online multiplayer game Fortnite, which allows players to customize their avatars by purchasing weapons, costumes and emotes. A number of viral dance moves have been included as emotes that can be purchased in Fortnite. 

Plaintiffs sued Epic for including the “Running Man” as one of the emotes available for purchase in the Fortnite game, claiming invasion of privacy/publicity, unfair competition, unjust enrichment, trademark infringement, trademark dilution and false designation of origin. Epic moved to dismiss, arguing that the common law claims were preempted by the Copyright Act and that the plaintiffs could not allege a valid trademark under the Lanham Act.

The court first determined that the plaintiffs’ common law claims for invasion of privacy/publicity, unfair competition and unjust enrichment were preempted by the Copyright Act. The court analyzed the “Running Man” under the two-prong preemption test, first determining that the “Running Man” broadly fell within the subject matter of the Copyright Act. While the plaintiffs argued that the “Running Man” was not a choreographic work but a dance, which cannot be copyrighted, the court noted that there was a continuum between simple dance steps and protectable choreographed works. Declining to determine exactly where on the continuum the “Running Man” fell, the court noted that the scope of copyright preemption is broader than that of copyright protection, and therefore it only had to find that the Running Man fell within the broad ambit of choreographic works. In doing so, the court relied, in part, on a previous lawsuit between Epic and the purported creator of a different dance used in Fortnite, which dismissed similar claims as preempted by the Copyright Act.

Moving to the second prong of the preemption test, which asks whether the rights that the plaintiff seeks to vindicate are equivalent to those protected by the Copyright Act, the court noted that Fourth Circuit precedent held that misappropriation claims were identical to those protected by copyright. The court then analyzed each of the common law claims in turn, determining that they all fundamentally relied on a theory of misappropriation.

For the claims of invasion of privacy/publicity, the court found that the plaintiffs’ claims concerned Epic’s capturing and digitally copying their dance move, and that this was, at bottom, a misappropriation claim and therefore preempted. Similarly, the gravamen of plaintiffs’ unfair competition claim was misappropriation of an original work, and therefore it too was preempted. Finally, the court found that the unjust enrichment claim, which was premised on the allegation that Epic profited by using the plaintiffs’ dance without their permission, was also fundamentally a misappropriation claim.

The court then turned to plaintiffs’ Lanham Act claims for unfair competition, trademark infringement, trademark dilution and false designation of origin, as well as a common law trademark infringement claim. 

First, the court found that the plaintiffs’ Lanham Act unfair competition and false designation of origin claims were precluded by the Copyright Act. For these two claims, the court found that the plaintiffs’ allegations were duplicative of the misappropriation claims that were preempted by the Copyright Act, and that while the Copyright Act does not expressly preempt the Lanham Act in a similar fashion, Supreme Court precedent demarcating claims under the respective statutes dictates that plaintiffs’ claims are in the nature of copyright claims rather than trademark claims, as there was no concern that consumers would be confused as to who produced a tangible good in the marketplace.

Finally, turning to the Lanham Act and common law trademark infringement and dilution claims, the court determined that the plaintiffs could not plausibly allege that the “Running Man” is a valid trademark. Trademarks are used to identify unique goods or services, something that the “Running Man” does not do. The court further noted that, even assuming plaintiffs had plausibly alleged misappropriation of their likenesses, as a general rule, images and likenesses are not considered trademarks. Because plaintiffs could not establish that the “Running Man” was a valid trademark, the court held that these claims failed as well. 

Because none of plaintiffs’ claims were viable, the case was dismissed with prejudice.

Summary prepared by Tal Dickstein and Alex Inman