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 conduct. 

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. 

Separately, 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 itself. 

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.”