Fortnite “Running Man” Emote Lawsuit Against Epic Games Dismissed

Brantley et al v. Epic Games, Inc. et al
Case No.: 8:19-cv-594-PWG
United States District Court for the District of Maryland
Filed February 25, 2019

A 2019 suit we previously covered relating to Fortnite’s “Running Man” dance emote has been dismissed. The case, brought by former University of Maryland basketball players against Fortnite developer Epic Games, was for trademark infringement, trademark dilution, invasion of the right of privacy/publicity, unfair competition, unjust enrichment, and false designation of origin.

The plaintiffs, former University of Maryland basketball players, became famous online through videos of the plaintiffs doing a dance referred to as the “Running Man” at basketball games.  To that end, the players asserted that the dance had “become synonymous with them.” Initially, the plaintiffs made claims of copyright infringement, but dropped those in favor of trademark infringement claims after Fourth Estate Public Benefit Corp. v. Wall-Street.com held that a plaintiff must register (and thereby receive Copyright Office approval of) their copyright before being able to sue for infringement of that copyright.

This is because, if the “Running Man” were a choreographic work, it would be governed by the Copyright Act and the plaintiffs would not be able to sue for copyright infringement because the “Running Man” has not been registered and approved by the Copyright Office. In an attempt to avoid dismissal, the plaintiffs alleged trademark infringement rather than copyright infringement, which is not subject to the Fourth Estate requirements. Section 102(a) of the Copyright Act specifically 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 de minimis movements, dance steps, social dances, and simple routines, which are not copyrightable” but also says that “[t]he dividing line between copyrightable choreographic and uncopyrightable dance is a continuum, rather than a bright line.” The Court did not define where on the continuum the “Running Man” falls, instead holding that, because “the scope of copyright preemption is broader than that of copyright protection, it is sufficient here to find that the Running Man is within the ‘general subject matter’ of copyright under a choreographic work.”

The Court also held that the Copyright Act preempted the plaintiffs’ claims of common law privacy violation, unfair competition, and unjust enrichment based on misappropriation of an original work. The allegations of unfair competition and false designation of origin under the Lanham Act were dismissed for similar reasons. Plaintiffs’ trademark infringement and trademark dilution claims were also dismissed because they failed to allege that the “Running Man” was a trademark that identified a good or service.

The Court, in a conclusion, characterized the case:

“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. But Plaintiffs’ claims that Epic Games copied the dance do not support any of their theories.”