The Maryland District Court issued a memorandum opinion and order dismissing a case seeking to remedy Epic Games’ “unauthorized appropriation of the dance the ‘Running Man’ that they allegedly created, named, and popularized” in 2016. The plaintiff said the video game developer “intentionally copied the movements of the ‘Running Man’ dance and incorporated them as a feature of its highly popular online video game Fortnite.” They accused Epic of violating the Lanham Act and “invasion of the right of privacy/publicity, unfair competition, unjust enrichment, trademark infringement, trademark dilution, and false designation of origin.” Epic Games’ motion to dismiss was granted.
Brantley and Nickens claimed they “incorporated the dance into breaks at University of Maryland basketball games, and that the dance subsequently went viral on social media.” They also said they created the Running Man Challenge, which also popularized the dance on social media and YouTube when they performed the dance on the Ellen DeGeneres Show. The court notes that while plaintiffs stated the created the dance, on the Ellen episode, they credit “two high school students from New Jersey – Kevin Vincent and Jeremiah Hall…with creating the dance.” Later in the segment, plaintiffs state that “they copied the dance from a video that they saw on Instagram.” However, plaintiffs “claim that the ‘Running Man’ has become synonymous with them.”
Epic Games creates and develops the “Fortnite” video game franchise. In the game, a “player can command their online avatar to perform programmed online movements called ‘emotes’ which express the player’s emotions in the game.” Fortnite is free to play, so the company makes its money through purchases made at the game’s store, where players can buy items to customize their avatar, including emotes. In 2018, Epic Games created the “Running Man” emote. The plaintiffs that the Running Man emote was created “by impermissibly copying the movements of the ‘Running Man’ dance and [that Epic Games] profited from the sale of the Emote.” Epic Games has moved to dismiss the claims against it.
The court agreed with Epic’s preemption argument. They said that the statute establishes a two-prong test to determine preemption: “first, the work must be within the scope of the subject-matter of copyright…and second, the rights granted under state law must be equivalent to any exclusive rights within the scope of federal copyright.” Choreographic works are protected by copyright, but the plaintiffs claimed Running Man is a “dance”, not a “choreographic work,” and is thus not subject to copyright.
While choreography and dance are related, the court explained, they are not synonymous; choreography is a “composition and arrangement of ‘a related series of dance movements and patterns organized into a coherent whole.’” A dance does not require choreography. The Running Man contains some but not all of the elements that would make it a choreography. The court pointed to a related Fortnite case about another emote, “Phone It In,” this case was partially dismissed.
Turning to the second prong, the court noted that typically, courts have found that “claims based on alleged misappropriation protect the same exclusive rights under the Copyright Act.” For example, the plaintiffs allege that Epic Games was “capturing and digitally copying” the Running Man dance to create an emote that “allows player’s avatars to execute the Running Man identically to Plaintiffs’ version.” The court states that “[t]his is squarely within the rights protected by the Copyright Act.” The court said Brantley and Nickens “bring common law claims based on alleged unauthorized copying of the Running Man, and these claims are therefore preempted by the Copyright Act.”
The court dismissed all of the plaintiffs’ claims with prejudice because plaintiffs already previously amended their claims and further amendment would be futile. The court said “[p]laintiffs seek to place the same square peg into eight round holes in search of a cause of action against Epic Game for its use of the Running Man dance.” However, “[p]laintiffs’ claims that Epic Games copied the dance do not support any of their theories.”
The plaintiffs are represented by The Jaklitsch Law Group and Pierce Bainbridge Beck Price & Hecht. Defendants are represented by Kirkland & Ellis, as well as, Kramon & Graham.