Running Man Stars Suing Epic Games for Fortnite Dance

Brantley et al. v. Epic Games, Inc. et al.,
Civil Action No. 8:19-cv-00594-PWG
United States District Court for the District of Maryland
Filed February 25, 2019

Two former college basketball athletes, Jaylen Brantley and Jared Nickens, are suing Epic Games for the use of their signature dance The Running Man. Epic responded to the suit by filing a Motion to Dismiss.

Brantley and Nickens claim they started a “viral craze” when they performed the dance on “The Ellen DeGeneres Show” in 2016. They assert Epic is attempting to profit from their fame and creativity by allowing Fortnite players to virtually perform their dance.

Brantley and Nickens’ Complaint, filed on February 25, 2019, alleges four causes of action for relief: infringement of copyright, contributory infringement of copyright, violation of publicity rights, and unfair competition.

This case is an interesting twist on many of the Fortnite-related dance lawsuits we’ve seen in recent months because it argues that Epic infringes a trademark, rather than a copyright.  The Supreme Court’s decision in Fourth Estate Public Benefit Corp v. held that copyright owners cannot file an infringement lawsuit until the Copyright Office has acted on their application to register the copyright.  In response to this decision, many individuals that had filed Fortnite-dance-related lawsuits against Epic dropped their suits, indicating that they would refile at a later time. Brantley and Nickens instead dropped their copyright infringement claims and replaced those claims with trademark infringement claims. The amended complaint thus includes claims for invasion of the right to privacy, unfair competition, unjust enrichment, trademark infringement, and false designation.

Epic has moved to dismiss Brantley and Nickens’ case, arguing that their trademark claims are preempted by the Copyright Act.  Specifically, Epic argues that, because a “dance is copyrightable subject matter,” the claims for trademark infringement in Brantley and Nickens’ lawsuit are improperly trying to seek relief on rights that are properly protected by copyright law, not trademark law. Epic did not cite a case supporting its proposition that dances cannot be trademarked. Brantley and Nickens responded to this argument by stating that the Running Man is simply a dance and not a “choreographic work protectable under the Copyright Act.”

In its Motion to Dismiss, Epic Games also asserts that the First Amendment bars Brantley and Nickens’ requested relief because the use of the Running Man dance is a form of artistic expression. In response, Plaintiffs state that the Running Man dance has no artistic relevance to Fortnite in the context of the video game and “is only included to make money.”

Brantley and Nickens have further asserted that the existence of the Running Man dance in the game has led consumers to wonder if Plaintiffs are involved in the creation of Fortnite and whether Epic created the dance themselves.

We will continue to update this case as new information becomes available.