Epic Games Sashays Past Another Fortnite Emote Lawsuit
Headline: On May 29, 2020, a federal district court in Maryland dismissed with prejudice a lawsuit against Epic Games brought by two University of Maryland basketball players, who alleged that a Fortnite emote copied the “Running Man,” a dance move they claimed to have popularized. Although plaintiffs originally claimed to have originated the Running Man, anyone who is old enough to have hit the dance floor in the late 80s knows this dance has been around for decades.
Background: This case is one of many brought by plaintiffs suing Epic over emote dance moves in Fortnite. While many of the early cases were dismissed due to copyright registration issues in the wake of the Fourth Estate case or stalled out because of issues with the copyrightability of dance moves, some have popped up anew, with little success.
Here, plaintiffs Jaylen Brantley and Jared Nickens alleged that they created, named, and popularized the Running Man dance move. While plaintiffs ultimately conceded they did not “create” the move but copied it from a video they saw on Instagram, they nevertheless claimed the move became “synonymous” with them after they did the dance move during breaks in their games and made the move go viral on social media through starting the “Running Man Challenge,” through which plaintiffs allege they challenged others to do the dance and post their performance on social media. Plaintiffs alleged Epic copied their dance move and profited from selling it as an emote in the Fortnite in-game storefront. The complaint asserted eight causes of action under common law and the Lanham Act for violation of their right of privacy/publicity, unfair competition, unjust enrichment, trademark infringement, trademark dilution, and false designation of origin. Notably, the complaint does not assert a copyright infringement claim.
Holdings: The court dismissed plaintiffs’ complaint with prejudice, holding that (1) the Copyright Act preempted Plaintiffs’ common law right of privacy/publicity, unfair competition, and unjust enrichment claims; and (2) plaintiffs failed to allege Lanham Act and common law trademark claims.
The Preemption Holding. The court first held that plaintiffs’ common law right of privacy/right of publicity, unfair competition, and unjust enrichment claims were preempted by the Copyright Act, as they all rested on alleged copying and use of the Running Man dance. Preemption under the Copyright requires that (1) the work must be within the scope of the subject matter of copyright and (2) the rights granted under state law must be equivalent to any exclusive rights within the scope of federal copyright.
Considering the first prong—whether the “Running Man” dance move fell within the scope of the subject matter of copyright—the Court noted that “The scope of copyright preemption is broader than the scope of copyright protection.” Opinion at 6. Based on this reasoning, the court did not decide the “closer” question of where the Running Man dance falls on “the continuum between copyrightable choreography and uncopyrightable dance.” Id. at 9. The court concluded that, “[f]ortunately,” it need not answer that question “[g]iven that the scope of copyright preemption is broader than that of copyright protection,” such that it was “sufficient here to find that the Running Man is within the ‘general subject matter’ of copyright under a choreographic work.” Id. at 9-10.
The court then went on to hold that the second preemption prong was also met with respect to the common law right of privacy/publicity, unfair competition, and unjust enrichment claims, as those claims were each based on alleged unauthorized copying of the Running Man dance and thus sought to protect the same exclusive rights as the Copyright Act. The court therefore dismissed the claims.
Dismissal of the Trademark Claims. The court also dismissed plaintiffs’ Lanham Act and trademark-related common law claims, resting its analysis on Pellegrino v. Epic Games as well as the Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) which courts have held to preempt claims concerning the origin of an idea embodied in a tangible good because those claims are governed by copyright law, not the Lanham Act. The court held that plaintiffs did not allege facts suggesting “confusion regarding the producer of a tangible product sold in the marketplace.” Id. at 19. The court also concluded that plaintiffs failed to allege the Running Man dance was a valid trademark and that the Running Man dance did not identify a good or service. Finally, the court rejected plaintiffs’ theory that Epic’s use of the Running Man dance created a false impression that plaintiffs endorsed Fortnite, holding that the claim rested on alleged copying of the Running Man dance and was thus precluded under Dastar. Based on this reasoning, the court dismissed all of plaintiffs’ remaining claims.
The court concluded its decision by holding that plaintiffs had been given a previous opportunity to amend and that further amendment would be futile, warranting dismissal of their claims with prejudice.
Practical Takeaways: This case is another in the line of largely unsuccessful Fortnite dance emote cases. Like those before it (e.g. Pellegrino v. Epic Games), it shows that plaintiffs will continue to face an uphill battle asserting alternative theories of liability for alleged misappropriation of dance moves. Even if such dance moves or other works may not be protectable under copyright (or present a close question), they still fall within the general subject matter of the Copyright Act and therefore face preemption. The case also illustrates how difficult it can be to fashion trademark claims based on allegations that, at their core, center on the copying of ideas or concepts rather than a valid mark that identifies goods and services. Such allegations are likely to fall within the purview of copyright, not trademark law.
A copy of the opinion in Brantley et al v. Epic Games, Inc. et al, Case No. 8:19-cv-00594-PWG (D. Md.) is located here.
By Ciara McHale, the “Word Wizard”