Fortnite Game Developer Doesn’t Miss A Beat in “Running Man” Dance IP Victory

Steven T. Lowe

On May 29, 2020, Judge Paul W. Grimm of the United States District Court for the District of Maryland dismissed a lawsuit that accused the creators behind the popular video game, “Fortnite,” of appropriating the “running man” dance without permission from the former University of Maryland students who came up with the viral trend.

In a complaint originally filed in February of 2019, plaintiffs Jaylen Brantley and Jared Nickens stated that they created, named, and popularized the “running man” dance craze back in 2016 when they first performed the dance move at University of Maryland basketball games and later live on the “Ellen DeGeneres Show.”

The move consists of pumping one’s arms in tight motions while shuffling to the 1996 song “My Boo” by Ghost Town DJ’s.

Declaring that the “running man” has since become synonymous with them, Brantley and Nickens claimed that the video game company, Epic Games, Inc., unlawfully incorporated the dance move into its successful franchise, Fortnite. As a result, the plaintiffs brought a total of eight causes of action against Epic Games, including invasion of the right of privacy/publicity and trademark infringement.

Fortnite is a battle-royal shooting game in which players can command their on-screen avatars to express a variety of emotions—called “emotes”—that are available for purchase in the game’s electronic “storefront.” In July 2018, the “running man” became one such emote.

In the May 2020 order, Judge Grimm, however, found that Brantley and Nickens’s claims were largely “preempted” by the Copyright Act and, also, that they failed to allege a valid trademark.

Initially, the plaintiffs accused Epic Games of copyright infringement, but quickly dropped that charge—presumably because Brantley and Nickens were only in the process of registering the “running man” dance with the Copyright Office. Following a U.S. Supreme Court ruling in 2019, copyright owners must wait until their work has been properly registered before initiating an infringement lawsuit.

Here, Judge Grimm determined that the foundation for the plaintiffs’ remaining claims was the purported “capturing and digitally copying” of the “running man” dance to create the Fortnite emote—which was “squarely” within the rights protected by the Copyright Act.

Basically, if another claim is too similar to a copyright infringement claim, the other claim will be “preempted” and subject to immediate dismissal.

The plaintiffs attempted to frame the “running man” dance as a trademark, asserting that it was based on their unique “likenesses,” but this argument could not keep their lawsuit in the game. As a general rule, Judge Grimm explained, images and likenesses do not function as trademarks.

Overall, Judge Grimm remarked that the plaintiffs unsuccessfully sought to “place the same square peg into eight round holes” in search of a cause of action against Epic Games, and thus dismissed the suit with prejudice.

Nickens and Brantley are represented by Richard L. Jaklitsch of the Jaklitsch Law Group and David Hecht of Pierce Bainbridge Beck Price & Hecht LLP.

Epic is represented by Dale M. Cendali, Joshua L. Simmons, Shanti Sadtler Conway and Megan L. McKeown of Kirkland & Ellis LLP and James P. Ulwick of Kramon & Graham PA.

The case is Brantley et al. v. Epic Games Inc. et al., case number 8:19-cv-00594, in the U.S. District Court of Maryland.