A federal judge has dismissed a lawsuit in which two former University of Maryland men’s basketball players accused the makers of the “Fortnite” video game of misappropriating a dance move that former teammates popularized.
The US District Judge. USA Paul Grimm in Maryland ruled Friday that the Copyright Law pre-empts claims that Jared Nickens and Jaylen Brantley filed in February 2019 against Epic Games, creator of the popular online shooting game.
Nickens and Brantley claimed that the Cary, North Carolina-based company misappropriated their identities by digitally copying the “Running Man Challenge” dance they performed on social media videos and on “The Ellen DeGeneres Show” in 2016.
Their copyright infringement lawsuit claimed that the “Running Man” dance “emote” that Fortnite players can buy for their characters is identical to the dance that Nickens and Brantley claimed to have created.
The judge said the key question is whether the plaintiffs have a claim that is “qualitatively different” from the rights protected by the Copyright Law.
“And here Plaintiffs ‘claim is based on Epic Games allegedly’ digitally capturing and copying ‘the Running Man dance to create the Fortnite emoticon that’ allows the player’s avatars to execute the Running Man identically to the version of the Plaintiffs’. This is within the rights protected by the Copyright Law, “he wrote.
Brantley, of Springfield, Massachusetts, and Nickens, of Monmouth Junction, NJ, were seeking more than $ 5 million in damages.
Epic Games spokesman Nick Chester declined to comment Monday on the judge’s ruling.
Celebration dances in Fortnite are called “gestures.” While the game itself is free, players can purchase “emotes” and other character customizations.
Other artists, including Brooklyn-based rapper 2 Milly and star of “The Fresh Prince of Bel-Air” Alfonso Ribeiro, has also sued Epic Games about other dances represented in the shooting game. Ribeiro dropped his lawsuit against Epic Games last year after being denied copyright by the United States Copyright Office for the “Carlton” dance his character performed in the 1990 comedy.
Nickens and Brantley appeared on the DeGeneres talk show alongside two New Jersey high school students who posted videos of the dance online before the two basketball players from the University of Maryland filmed their own version. Brantley told DeGeneres that Nickens first showed him the dance in a video on Instagram.
“We dance every day for our teammates in the locker room,” said Brantley. “We thought, ‘Hey, let’s make a video and make everyone laugh.'”
One of her dance videos has millions of views on Instagram, YouTube and Facebook, according to her demand.
The judge dismissed the claims in his lawsuit for invasion of privacy, unfair competition, and unfair enrichment based on preference under the Copyright Law. It also rejected its trademark claims and claims accusing the company of unfair competition and “false designation of origin” under the Lanham Act.
Plaintiffs seek to place the same square peg into eight round holes in search of a cause of action against Epic Games for the use of the Running Man dance in their Fortnite game. But the plaintiffs’ claims that Epic Games copied the dance do not support any of their theories, “the judge wrote.
Nickens was playing professional basketball in Canada and Brantley was working as a sports agent when they were sued last year, according to Richard Jaklitsch, one of his lawyers. Jaklitsch did not immediately respond to an email seeking comment Monday.