Jaylen Brantley and Jared Nickens lose Civil Action against Epic Games involving issue of copying dance steps
Date Published: Jun 24, 2021
Jaylen Brantley and Jared Nickens (collectively referred to as “Brantley”) filed a civil action against Epic Games Inc (“Epic Games”) on the ground of unauthorized appropriation of their dance “Running Man” (“Emote”) at the United States District Court for The District of Maryland (“District Court”) with 8 causes under Lanham Act including invasion of right of privacy/publicity, unfair competition, unjust enrichment etc., and sought compensation as well as injunctive relief. Epic Games is the creator and developer of the Fortnite video game franchise, a free-to-play online multiplayer video game that allows up to one hundred players to play together in a single match and further allows each player to select as well as create their own individualized, extensively customizable avatar. Online avatars, by way of a simple command, can be made to perform various type of emotes. Emotes, briefly, are pre-programmed movements to make the game more appealing for users.
Brantley averred that in the year 2016, they created and popularized a dance move called Running man, which was often performed in between the basketball games at the University of Maryland and which subsequently also got viral on social media. It was their case that as on the date of filing the instant suit the dance move had more than 100 million views on Youtube and thousands of people had even posted videos of themselves performing the said dance move. Brantley claimed that Kevin Vincent and Jeremuiah hall, two high school students, are the ones who actually created the said dance move and that Brantley simply performed/copied the dance video, which they saw on Instagram. Brantley, nevertheless, asserted that the “Running Man” had become synonymous with them.
Since Fortnite is free to play, the game is predominantly financed by players/users who buy various customizations for their virtual avatar, like costumes, equipment and unique emotes. Epic Games produced and introduced the emote “Running Man” which could be purchased for five dollars on Fortnite Electronic storefront as part of a package. Brantley asserted that Epic Games created the said emote by the unauthorized copying of their Running Man dance move and earned wrongful profit by selling it. As a result, Brantley brought this civil action at the district court which was dismissed by the court on the counter motion of Epic Games. The court referred to Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) ruling and pointed out that, as per the test of sufficiency a pleading must meet the standard of Rule 8(a) which require a complaint to contain factual contents which are more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.”
The Court further observed that the allegations must be construed in the light, most favorable to the plaintiff. The counter contention of Epic Games was that claims for Lanham Act are precluded from the Copyright Act and that the Plaintiffs failed to allege existence of a valid trademark to claim reliefs under the Lanham Act.
The Court observed that Copyright Act expressly preempts a broad array of claims and that The Running Man is the subject matter of Copyright under Section 102 & 103 of the Copyright Act. The Copyright protection covers original works of authorship present in any tangible medium of expression from which such work can be perceived, reproduced, or communicated directly or via machine/device and includes choreographic works but does not include the idea embodied in a work. It was further observed that copyright preemption is broader than the protection of copyright. The Plaintiff at this stage argued that the Running Man was a dance and not a choreographic work and therefore it could not be a subject matter of copyright. But the district court referring to the case Pellegrino v. Epic Games, Inc rejected this argument of the plaintiff and held that the “Running Man” constitutes subject matter of Copyright. In the Pellegrino case, the court held that copying the step of turning legs and feet while playing saxophone was well within the scope of copyright.
The Plaintiffs in the instant suit brought the claims under the Lanham Act and Common Law Trademark. However, they failed to point out any particular section of the Lanham Act under which they were claiming relief. Based on the arguments surrounding misappropriation and confusion among the public, the Court evaluated the dispute in light of Section 43 (a). The Court took into consideration Supreme Court’s discussion specifically distinguishing Lahman Act and Copyright Claims, wherein it was observed that provisions pertaining to “origin of goods” under Section 43(a) only refer to producer of tangible goods offered for sale, and not to the author of idea, concept, or communication embodied in those goods. In the Pellegrino case, where there was confusion as to who originated the Signature Move embodied in the “Phone It In” emote, because Epic did not credit Pellegrino as creator of the dance, it was observed that a claim that concerns the origin of an idea embodied in a tangible good is governed by copyright law, not the Lanham Act. Here, in this case as well, the Plaintiffs failed to suggest that there was any confusion regarding producer of a tangible good. Plaintiffs also failed to argue that the Running Man dance was a valid trademark and that it did not identify as a good or service.
Federal trademark law defines the term “trademark” to include any “word, name, symbol, or device, or any combination thereof” that is used to identify and distinguish unique goods or service, and Plaintiffs failed to satisfy these requirements.
Plaintiff’s above claims were dismissed by the district court as it did not demonstrate existence of a valid trademark; with regard to the claims regarding invasion of the right of privacy/publicity/unfair competition and unjust enrichment, such claims were dismissed on the ground of preemption under copyright law. In a similar manner, the issue of unfair competition and false designation was dismissed because the claim did not fall under the domain of Lanham act; and instead it fell under the domain of copyright law.