Copyright preempts/Dastar precludes lawsuit based on Fortnite’s copying of a dance move

Brantley v. Epic
Games, Inc., No. v. 19-cv-594-PWG (D. Md. May 29, 2020)

Plaintiffs Brantley
and Nickens alleged that in 2016 they created, named, and popularized a dance
move, which they titled the “Running Man,” and which subsequently went viral on
social media. (In part this came after a live performance of the dance by
Brantley and Nickens on the Ellen DeGeneres Show, during which two high school
students from New Jersey, Kevin Vincent and Jeremiah Hall, were credited with
creating the dance; Brantley and Nickens stated later in the segment that they
copied the dance from a video that they saw on Instragram.) They alleged that
the “Running Man” has become synonymous with them. 

Epic makes the
Fortnite video game franchise, allegedly popular not just because of gameplay but
also because of the incorporation and popularity of in-game emotes, moves that
express the player’s emotions in the game. In 2018, Epic introduce a new emote,
the “Running Man,” which cost about $5.

Plaintiffs sued for invasion
of the right of privacy/publicity, unfair competition, unjust enrichment,
trademark infringement, trademark dilution, and false designation of origin.
Finding all the claims either copyright-preempted or inapposite, the court
dismissed the complaint.

Common-law privacy,
unfair competition, and unjust enrichment were preempted. First, the Running
Man dance was within the subject matter of copyright, since copyright covers
choreographic works. The court noted that “the scope of copyright preemption is
broader than the scope of copyright protection”; an unprotectable social dance
step that was insufficiently extensive to constitute a chorographic work is,
like an unprotectable idea, still within the subject matter of copyright. The
court thought it a “closer question” than in previous cases whether the Running
Man could be copyrightable, but in any event it was “somewhere on the continuum
between copyrightable choreography and uncopyrightable dance,” and that was all
the court needed to know for preemption purposes.

Second, the rights
asserted were, under these circumstances, equivalent to the rights granted by
copyright. Unfair competition via misappropriation is regularly preempted; unjust
enrichment too where there are no elements other than reproduction,
performance, distribution, or display constituting the alleged violative

Privacy/publicity: Plaintiffs
argued that misappropriation of identity/likeness constituted an extra element.
But just because ROP claims are sometimes not preempted does not mean they are
never preempted. The question is whether plaintiffs were claiming something “qualitatively
different” than the rights protected by the Copyright Act. Here, they were not:
their claims were based on alleged copying of the Running Man dance, squarely
within the scope of the Copyright Act. The court did not accept that the dance
was plaintiffs’ “likeness.”

Lanham Act/common
law trademark claims: Dastar!  Plaintiffs
alleged that Epic’s use of the Running Man “has caused and will continue to
cause confusion and mistake by leading the public to erroneously associate the
Emote offered by Epic with the Running Man, as executed and associated with
Plaintiffs, as exemplified in their online video.”

Dastar instructs that causes of action under §
43(a) of the Lanham Act based on misappropriation and confusion can proceed
only where there is confusion as to “the producer of the [] product sold in the
marketplace” not the “person or entity that originated the ideas or
communications that ‘goods [or services]’ embody or contain.”  This was a claim based on copying ideas or
concepts, not based on source confusion. As a previous emote case held, the
complaint didn’t plausibly allege that there was confusion over who produced
the emote. At most, the complaint alleged only confusion over who came up with
the move, which is not Lanham Act confusion.

plaintiffs failed to allege that the Running Man was a valid mark identifying a
good or service. “[A]s a general rule images and likenesses do not function as
trademarks” (citing ETW Corp. v. Jireh Publ’g, 322 F. 3d 915, 922-923 (6th Cir.
2003)). And plaintiffs didn’t adequately allege how the Running Man dance was
used to identify a unique good or service. It could not be a trademark for

False endorsement
theory: plaintiffs alleged that Epic “creat[ed] the false impression that
Plaintiffs endorsed Fortnite.” The court pointed out that several courts have
dismissed similar claims using Dastar—if all you had to do to avoid Dastar
was to plead false endorsement, the case would be a dead letter and the
conflict with copyright law would reignite, at least for accused “communicative
products.” However, the previous emote case didn’t rely on Dastar,
distinguishing endorsement as distinct from authorship or origin. Here, the
allegations didn’t support such a distinction: plaintiffs’ allegations of false
endorsement were based solely on copying the Running Man dance. “”A false
endorsement claim based on these allegations would lead to the type of conflict
between the Lanham Act and the copyright law that the Supreme Court sought to
avoid in Dastar.”

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