Categories: Sports Disputes

Epic Games Sued Again, This Time By Former Maryland Basketball Players

Two former University of Maryland basketball players are suing the creator of Fortnite for copyright infringement. Jaylen Brantley and Jared Nickens have filed a Complaint against Epic Games, claiming that Epic Games has improperly used their “Running Man” dance in the video game without their permission.

The lawsuit also alleges that Epic Games’ use of the dance move is a violation of the plaintiffs’ right of publicity. They rely on a belief that Epic Games created its Running Man emote by capturing and digitally copying the plaintiffs performing said dance.

Brantley and Nickens claim that they created, named and/or popularized the Running Man dance, which went viral on the Internet in April 2016. It was further popularized after they appeared on The Ellen Degeneres Show. They say that it was incorporated into their pre- and half-time breaks with other members of the University of Maryland basketball team, and that the public easily attaches the dance to them as a group.

Now, Brantley and Nickens say that Epic Games is improperly commercializing the dance, by selling it as an in-game purchase in Fortnite, without their permission and without compensating them for the use. They claim that Epic Games has engaged in a pattern of simply stealing dance moves from the creators of those moves and not caring about providing compensation or credit.

In the Complaint, Brantley and Nickens highlight that Epic Games began offering a “The Running Man Emote” in July 2018. Fortnite players are able to obtain the emote as a reward or by purchasing it. They mention that other prominent artists, including Chance the Rapper, have publicly disapproved of Epic Games’ practices and advocated for profit sharing with the artists that create the dances used in the game.

There have been numerous lawsuits already filed against Epic Games for use of dance moves within Fortnite. In one of the cases, brought by Terrence “2 Milly” Ferguson, Epic Games has argued, in a motion to dismiss, that no one can own a dance step. The company further stated,

“Copyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy.”

The court in that case has not yet ruled on Epic Games’ motion to dismiss.

Additionally, in a separate case concerning Epic Games’ use of the “Carlton Dance,” it was discovered that the U.S. Copyright Office expressed concern in registering the dance as a valid copyright. A supervisory registration specialist wrote the following:

“The dancer sways their hips as they step from side to side, while swinging their arms in an exaggerated manner. In the second dance step, the dancer takes two steps to each side while opening and closing their legs and their arms in unison. In the final step, the dancer’s feet are still and they lower one hand from above their head to the middle of their chest while fluttering their fingers. The combination of these three dance steps is a simple routine that is not registrable as a choreographic work.”

Thus, as has been the true with prior cases filed against Epic Games concerning copyright infringement, expect the video game manufacturer to put up a strong defense that at least initially attacks the ability for the former Maryland basketball players to claim that a valid copyright on the dance even exists.

Darren Heitner

Darren Heitner is the creator of The Sports Biz. He is the owner of the South, Florida-based HEITNER LEGAL, P.L.L.C., which is a law firm that focuses on transactional, intellectual property and litigation work with a heavy emphasis on sports and entertainment issues. He is also the founder of Sports Agent Blog and an author of 2 books published by the American Bar Association -- How to Play the Game: What Every Sports Attorney Needs to Know (1st and 2nd Editions). Heitner contributed to Forbes and Inc. for many years.

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