Fortnite Wins Again -- Copyright Preemption in Brantley v. Epic Games, Inc. Part 1: The "Running Man" Dance and Copyright Subject Matter
Brantley v. Epic Games, Inc., No. 8:19-CV-594-PWG, 2020 WL 2794016, at *12 (D. Md. May 29, 2020)
Plaintiffs Jaylen Brantley and Jared Nickens bring this action against Defendant Epic Games, Inc. for the alleged unauthorized appropriation of the dance the “Running Man” that they allegedly created, named, and popularized. Plaintiffs claim that Epic Games intentionally copied the movements of the “Running Man” dance and incorporated them as a feature of its highly popular online video game Fortnite. They bring eight causes of action under common law and the federal Lanham Act for invasion of the right of privacy/publicity, unfair competition, unjust enrichment, trademark infringement, trademark dilution, and false designation of origin. Plaintiffs seek both compensatory and injunctive relief. Epic Games now moves to dismiss the claims against it.
Plaintiffs Brantley and Nickens allege that in 2016 they created, named, and popularized the dance move which they titled the “Running Man.” Brantley and Nickens allege that they incorporated the dance into breaks at University of Maryland basketball games, and that the dance subsequently went viral on social media. Plaintiffs claim to have incited the online popularity of the Running Man by challenging others to imitate the dance and post the performance on social media. Id. They state that the Running Man videos have over 100 million views on YouTube and thousands of people have posted videos of themselves performing the dance.
The popularity of the “Running Man Challenge” allegedly exploded in part after a live performance of the dance by Brantley and Nickens on the Ellen DeGeneres Show. While Plaintiffs repeatedly allege in their complaint that they “created” the dance, during the Ellen segment two high school students from New Jersey – Kevin Vincent and Jeremiah Hall – are credited with creating the dance. Brantley and Nickens appear later in the segment and state that they copied the dance from a video that they saw on Instragram. Nonetheless, Brantley and Nickens claim that the “Running Man” has become synonymous with them.
Defendant Epic Games is the creator and developer of the Fortnite video game franchise. Fortnite is a free-to-play online multiplayer video game which supports up to one hundred players during a single game. Fortnite allows each player to select and create their own individualized avatar which is extensively customizable. The players then compete in a battle-royale style shooting match where the last player standing is declared the victor. At any point during the match, the player can command their online avatar to perform programmed movements called “emotes” which express the player’s emotions in the game. Fortnite’s massive popularity can be attributed not just to its gameplay, but also to the incorporation and popularity of in-game emotes.
Because Fortnite is free-to-play, the game is primarily supported by purchases made at the game’s electronic storefront. At the electronic storefront, players can purchase various customizations for their online characters including costumes, equipment, and unique emotes. In July 2018, Epic Games produced a new emote which was called the “Running Man” emote (the “Emote”). The Emote could be purchased for roughly five dollars on the Fortnite electronic storefront or purchased as part of a package included with the latest installment of Fortnite.
Brantley and Nickens allege that Epic Games created the Emote by impermissibly copying the movements of the “Running Man” dance and profited from the sale of the Emote on the Fortnite electronic storefront. Brantley and Nickens bring a total of eight causes of action against Epic Games under theories of invasion of the right of privacy/publicity, unfair competition, unjust enrichment, trademark infringement, trademark dilution, and false designation of origin. Epic Games moves to dismiss the claims against it.
Epic Games argues that the Copyright Act preempts Brantley and Nickens’ claims for invasion of the right of privacy/publicity (Count I), common law unfair competition (Count III) and unjust enrichment (Count IV). Similarly, Epic Games argues that Brantley and Nickens’ claims for Lanham Act unfair competition (Count II) and false designation of origin (Count VII) are precluded by the Copyright Act. Finally, Epic Games argues that Plaintiffs failed to plausibly allege a valid trademark for their claims for Lanham Act trademark infringement (Count V), common law trademark infringement (Count VI), and Lanham Act trademark dilution (Count VII).
The Copyright Act expressly preempts a broad array of other claims. Specifically, § 301 of the Copyright Act states as follows:
On or after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
17 U.S.C. § 301.
This statutory language establishes a two-prong test for determining copyright preemption: “first, the work must be within the scope of the subject-matter of copyright as specified in 17 U.S.C. §§ 102, 103, and second, the rights granted under state law must be equivalent to any exclusive rights within the scope of federal copyright as set out in 17 U.S.C. § 106.” U.S. ex rel. Berge v. Bd. of Trustees of the Univ. of Alabama, 104 F.3d 1453, 1463 (4th Cir. 1997) (quoting Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 229 (4th Cir. 1993)) (internal quotation marks omitted). I analyze each of these prongs in turn.
However, the scope of copyright preemption is broader than the scope of copyright protection. See Berge, 104 F.3d at 1463 (rejecting argument that a claim is not preempted because it falls within “ideas and methods” excluded from copyright protection because “the shadow actually cast by the Act's preemption is notably broader than the wing of its protection.”)
The analysis under this first prong of the test for copyright preemption is the same for Brantley and Nickens’ invasion of the right of privacy/publicity, common law unfair competition and unjust enrichment clams, because they are all based on the alleged copying and use of the Running Man dance. Section 102(a) of the Copyright Act explicitly includes within its list of protected authorships, “choreographic works.” 17 U.S.C. § 102(a). Plaintiffs argue that they allege that the Running Man is a “dance,” and not a “choreographic work,” and therefore it is not the subject of copyright.
The U.S. Copyright Office has published a Compendium of U.S. Copyright Practices that provides an explanation of how it considers the distinction between a choreographic work and dance, which provides a useful guide:
The Office defines choreography as the composition and arrangement of “a related series of dance movements and patterns organized into a coherent whole.” [Horgan v. Macmillan, Inc., 789 F.2d 157, 161 (2d Cir. 1986)] (quoting Compendium (Second) § 450.03(a)). By definition, choreography is a subset of dance. As such, a work of authorship cannot be registered as a choreographic work unless it is comprised of dance steps, dance movements, and/or dance patterns. However, the term choreography is not synonymous with dance. The legislative history for the 1976 Copyright Act clearly states that “ ‘choreographic works’ do not include social dance steps and simple routines.” H.R. Rep. No. 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. at 5667; S. Rep. No. 94-473, at 52 (1975).
U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 805.1 (3rd ed. 2017).
The Copyright Office states that choreographic works typically contain one or more of the following elements: rhythmic movements in a defined space, compositional arrangement, music or textual accompaniment, dramatic content, presentation before an audience, and execution by skilled performers. Id. § 805.2.
Choreographic works are distinguished from de minimis movements, dance steps, social, dances, and simple routines, which are not copyrightable. The Copyright Office explains:
Individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet. Id. (quoting Compendium (Second) § 450.06). Likewise, the U.S. Copyright Office cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if the routine is novel or distinctive. Cf. 37 C.F.R. § 202.1(a). The individual elements of a dance are not copyrightable for the same reason that individual words, numbers, notes, colors, or shapes are not protected by the copyright law. Individual dance steps and short dance routines are the building blocks of choreographic expression, and allowing copyright protection for these elements would impede rather than foster creative expression.
See Horgan, 789 F.2d at 161 (quoting Compendium (Second) § 450.06)
When Congress extended federal copyright protection to choreography, it intended to protect expressive works of authorship, such as ballet or modern dance. However, Congress did not intend to protect all forms of dance or movement. The legislative history specifically states that “choreographic works do not include social dance steps and simple routines.” H.R. Rep. No. 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. at 5667; S. Rep. No. 94-473, at 52 (1975). Thus, the U.S. Copyright Office cannot register a claim to copyright in social dances or simple routines, because they do not constitute copyrightable subject matter.
Id. § 805.5(A)–(B).
Thus, “[t]he dividing line between copyrightable choreography and uncopyrightable dance is a continuum, rather than a bright line. At one extreme are ballets, modern dances, and other complex works that represent a related series of dance movements and patterns organized into a coherent compositional whole. At the other extreme are social dances, simple routines, and other uncopyrightable movements.... Many works fall somewhere in between.” Id. § 805.5(B).
In a similar case, Pellegrino v. Epic Games, Inc., the United States District Court for the Eastern District of Pennsylvania recently analyzed this distinction between choreography and dance for the purposes of copyright preemption regarding another Fortnite emote. Pellegrino v. Epic Games, Inc., No. CV 19-1806, 2020 WL 1531867 (E.D. Pa. Mar. 31, 2020). In that case, Leo Pellegrino, a professional saxophone player, alleged that Epic Games copied his signature dance movement involving turning his legs and feet to the side while playing the saxophone to create the “Phone It In” emote in the Fortnite game. Like here, Pellegrino brought claims for violation of rights of privacy and publicity, unjust enrichment, unfair competition, trademark infringement, and trademark dilution. Id. The Court dismissed Pellegrino’s state law trademark infringement claim after finding that it was preempted by the Copyright Act. In reaching this conclusion, the court looked to the Copyright Act’s compendium and held that Pellegrino’s “Signature Move” was a dance within the subject matter of copyright under the first prong of the copyright preemption test:
At issue therefore is whether dance falls within the subject matter of copyright. We conclude that it does. Specifically, we find that dance falls within the ambit of the copyright category “choreographic works.” 17 U.S.C. § 102(a)(4). Although “the term choreography is not synonymous with dance,” the U.S. Copyright Office, Compendium of U.S. Copyright Office Practices (3rd ed. 2017) (the “Compendium”), defines choreography as a “subset of dance [because] a work of authorship cannot be registered as a choreographic work unless it is comprised of dance steps, dance movements, and/or dance patterns.” Id. § 805.5(B)(3); see also id. § 805.5(B) (“The dividing line between copyrightable choreography and uncopyrightable dance is a continuum, rather than a bright line.”). In fact, to register a claim to copyright in a choreographic work, the U.S. Copyright Office requires that “the [proposed] work is a dance.” Id. § 805.4. We therefore conclude that the Signature Move, which is alleged to be a dance, is the appropriate subject matter of copyright law in satisfaction of the first prong of the test for copyright preemption.
Pellegrino v. Epic Games, Inc., No. CV 19-1806, 2020 WL 1531867, at *8 (E.D. Pa. Mar. 31, 2020).
Whether the Running Man dance could be subject to copyright protection is a closer question. It has some characteristics of a choreographic work: it consists of rhythmic movements in a defined space, has music accompaniment, and was presented before an audience. ECF No. 27-2; U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 805.2 (3rd ed. 2017). However, it could also be compared to a dance step, like “the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet” and therefore would not be copyrightable. Id. § 805.5(A). The Running Man also potentially could be characterized as a “social dance” given that it was widely enjoyed and performed by thousands of members of the public. Id. § 805.5(B). In short, the Running Man is somewhere on the continuum between copyrightable choreography and uncopyrightable dance.
Fortunately, the question of precisely where on that continuum the Running Man falls does not need to be decided. Given that the scope of copyright preemption is broader than that of copyright protection, it is sufficient here to find that the Running Man is within the “general subject matter” of copyright under a choreographic work. Fin. Info., Inc. v. Moody's Inv'rs Serv., 808 F.2d 204 (2d Cir. 1986) (quoting H.R. Rep. No. 1476, 94th Cong., 2d Sess., 131 reprinted in 1976 U.S. Code Cong. & Ad. News, 5659, 5747); see also Berge, 104 F.3d at 1463; Alliance for Telcoms. Indus. Sols., Inc. v. Hall, No. CCB-05-440, 2007 WL 3224589, at *10 (D. Md. Sept. 27, 2007). Therefore, like the court in Pellegrino found as to Leo Pellegrino’s “Signature Move,” I find that the Running Man dance is within the subject matter of copyright law, satisfying the first prong of the test for copyright preemption.
Plaintiffs seek to place the same square peg into eight round holes in search of a cause of action against Epic Games for its use of the Running Man dance in its game Fortnite. But Plaintiffs’ claims that Epic Games copied the dance do not support any of their theories. Plaintiffs’ common law causes of action for invasion of the right of privacy/publicity, unfair competition, and unjust enrichment are dismissed based on preemption under the Copyright Act. Similarly, their claims for unfair competition and false designation of origin under the Lanham Act are dismissed because their allegations are in the domain of copyright law and not the Lanham Act. Finally, Plaintiffs remaining Lanham Act and common law trademark claims are dismissed for failure to plausibly allege a valid trademark. Because Plaintiffs already amended their complaint once in light of these deficiencies, further amendment would be futile and Plaintiffs’ claims are dismissed with prejudice.
Brantley v. Epic Games, Inc., No. 8:19-CV-594-PWG, 2020 WL 2794016, at *12 (D. Md. May 29, 2020)
Topic: Copyright Preemption for Dance & Choreography
Takeaways:
- Court finds that the "Running Man" falls somewhere between Copyrightable choreography and uncopyrightable dance steps and is therefore within the "general subject matter" of Copyright.
Plaintiffs Jaylen Brantley and Jared Nickens bring this action against Defendant Epic Games, Inc. for the alleged unauthorized appropriation of the dance the “Running Man” that they allegedly created, named, and popularized. Plaintiffs claim that Epic Games intentionally copied the movements of the “Running Man” dance and incorporated them as a feature of its highly popular online video game Fortnite. They bring eight causes of action under common law and the federal Lanham Act for invasion of the right of privacy/publicity, unfair competition, unjust enrichment, trademark infringement, trademark dilution, and false designation of origin. Plaintiffs seek both compensatory and injunctive relief. Epic Games now moves to dismiss the claims against it.
Background
Plaintiffs Brantley and Nickens allege that in 2016 they created, named, and popularized the dance move which they titled the “Running Man.” Brantley and Nickens allege that they incorporated the dance into breaks at University of Maryland basketball games, and that the dance subsequently went viral on social media. Plaintiffs claim to have incited the online popularity of the Running Man by challenging others to imitate the dance and post the performance on social media. Id. They state that the Running Man videos have over 100 million views on YouTube and thousands of people have posted videos of themselves performing the dance.
The popularity of the “Running Man Challenge” allegedly exploded in part after a live performance of the dance by Brantley and Nickens on the Ellen DeGeneres Show. While Plaintiffs repeatedly allege in their complaint that they “created” the dance, during the Ellen segment two high school students from New Jersey – Kevin Vincent and Jeremiah Hall – are credited with creating the dance. Brantley and Nickens appear later in the segment and state that they copied the dance from a video that they saw on Instragram. Nonetheless, Brantley and Nickens claim that the “Running Man” has become synonymous with them.
Defendant Epic Games is the creator and developer of the Fortnite video game franchise. Fortnite is a free-to-play online multiplayer video game which supports up to one hundred players during a single game. Fortnite allows each player to select and create their own individualized avatar which is extensively customizable. The players then compete in a battle-royale style shooting match where the last player standing is declared the victor. At any point during the match, the player can command their online avatar to perform programmed movements called “emotes” which express the player’s emotions in the game. Fortnite’s massive popularity can be attributed not just to its gameplay, but also to the incorporation and popularity of in-game emotes.
Because Fortnite is free-to-play, the game is primarily supported by purchases made at the game’s electronic storefront. At the electronic storefront, players can purchase various customizations for their online characters including costumes, equipment, and unique emotes. In July 2018, Epic Games produced a new emote which was called the “Running Man” emote (the “Emote”). The Emote could be purchased for roughly five dollars on the Fortnite electronic storefront or purchased as part of a package included with the latest installment of Fortnite.
Brantley and Nickens allege that Epic Games created the Emote by impermissibly copying the movements of the “Running Man” dance and profited from the sale of the Emote on the Fortnite electronic storefront. Brantley and Nickens bring a total of eight causes of action against Epic Games under theories of invasion of the right of privacy/publicity, unfair competition, unjust enrichment, trademark infringement, trademark dilution, and false designation of origin. Epic Games moves to dismiss the claims against it.
Discussion
I. Plaintiffs’ Common Law Privacy, Unfair Competition, and Unjust Enrichment Claims are Preempted by the Copyright Act
The Copyright Act expressly preempts a broad array of other claims. Specifically, § 301 of the Copyright Act states as follows:
On or after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
17 U.S.C. § 301.
This statutory language establishes a two-prong test for determining copyright preemption: “first, the work must be within the scope of the subject-matter of copyright as specified in 17 U.S.C. §§ 102, 103, and second, the rights granted under state law must be equivalent to any exclusive rights within the scope of federal copyright as set out in 17 U.S.C. § 106.” U.S. ex rel. Berge v. Bd. of Trustees of the Univ. of Alabama, 104 F.3d 1453, 1463 (4th Cir. 1997) (quoting Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 229 (4th Cir. 1993)) (internal quotation marks omitted). I analyze each of these prongs in turn.
a. The Running Man is Within the Subject Matter of Copyright
Under the first prong of the test for copyright preemption, I must consider whether the work in question – the Running Man dance – falls within the subject matter of copyright as specified in sections 102 and 103 of the Copyright Act. As relevant here, section 102(a) provides that “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: ... choreographic works.” 17 U.S.C. § 102(a). Section 102(b) provides that “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b). In other words, copyright protection extends to original works of authorship in a tangible medium including choreographic works, but not for any ideas embodied in a work.However, the scope of copyright preemption is broader than the scope of copyright protection. See Berge, 104 F.3d at 1463 (rejecting argument that a claim is not preempted because it falls within “ideas and methods” excluded from copyright protection because “the shadow actually cast by the Act's preemption is notably broader than the wing of its protection.”)
The analysis under this first prong of the test for copyright preemption is the same for Brantley and Nickens’ invasion of the right of privacy/publicity, common law unfair competition and unjust enrichment clams, because they are all based on the alleged copying and use of the Running Man dance. Section 102(a) of the Copyright Act explicitly includes within its list of protected authorships, “choreographic works.” 17 U.S.C. § 102(a). Plaintiffs argue that they allege that the Running Man is a “dance,” and not a “choreographic work,” and therefore it is not the subject of copyright.
The U.S. Copyright Office has published a Compendium of U.S. Copyright Practices that provides an explanation of how it considers the distinction between a choreographic work and dance, which provides a useful guide:
The Office defines choreography as the composition and arrangement of “a related series of dance movements and patterns organized into a coherent whole.” [Horgan v. Macmillan, Inc., 789 F.2d 157, 161 (2d Cir. 1986)] (quoting Compendium (Second) § 450.03(a)). By definition, choreography is a subset of dance. As such, a work of authorship cannot be registered as a choreographic work unless it is comprised of dance steps, dance movements, and/or dance patterns. However, the term choreography is not synonymous with dance. The legislative history for the 1976 Copyright Act clearly states that “ ‘choreographic works’ do not include social dance steps and simple routines.” H.R. Rep. No. 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. at 5667; S. Rep. No. 94-473, at 52 (1975).
U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 805.1 (3rd ed. 2017).
The Copyright Office states that choreographic works typically contain one or more of the following elements: rhythmic movements in a defined space, compositional arrangement, music or textual accompaniment, dramatic content, presentation before an audience, and execution by skilled performers. Id. § 805.2.
Choreographic works are distinguished from de minimis movements, dance steps, social, dances, and simple routines, which are not copyrightable. The Copyright Office explains:
Individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet. Id. (quoting Compendium (Second) § 450.06). Likewise, the U.S. Copyright Office cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if the routine is novel or distinctive. Cf. 37 C.F.R. § 202.1(a). The individual elements of a dance are not copyrightable for the same reason that individual words, numbers, notes, colors, or shapes are not protected by the copyright law. Individual dance steps and short dance routines are the building blocks of choreographic expression, and allowing copyright protection for these elements would impede rather than foster creative expression.
See Horgan, 789 F.2d at 161 (quoting Compendium (Second) § 450.06)
When Congress extended federal copyright protection to choreography, it intended to protect expressive works of authorship, such as ballet or modern dance. However, Congress did not intend to protect all forms of dance or movement. The legislative history specifically states that “choreographic works do not include social dance steps and simple routines.” H.R. Rep. No. 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. at 5667; S. Rep. No. 94-473, at 52 (1975). Thus, the U.S. Copyright Office cannot register a claim to copyright in social dances or simple routines, because they do not constitute copyrightable subject matter.
Id. § 805.5(A)–(B).
Thus, “[t]he dividing line between copyrightable choreography and uncopyrightable dance is a continuum, rather than a bright line. At one extreme are ballets, modern dances, and other complex works that represent a related series of dance movements and patterns organized into a coherent compositional whole. At the other extreme are social dances, simple routines, and other uncopyrightable movements.... Many works fall somewhere in between.” Id. § 805.5(B).
In a similar case, Pellegrino v. Epic Games, Inc., the United States District Court for the Eastern District of Pennsylvania recently analyzed this distinction between choreography and dance for the purposes of copyright preemption regarding another Fortnite emote. Pellegrino v. Epic Games, Inc., No. CV 19-1806, 2020 WL 1531867 (E.D. Pa. Mar. 31, 2020). In that case, Leo Pellegrino, a professional saxophone player, alleged that Epic Games copied his signature dance movement involving turning his legs and feet to the side while playing the saxophone to create the “Phone It In” emote in the Fortnite game. Like here, Pellegrino brought claims for violation of rights of privacy and publicity, unjust enrichment, unfair competition, trademark infringement, and trademark dilution. Id. The Court dismissed Pellegrino’s state law trademark infringement claim after finding that it was preempted by the Copyright Act. In reaching this conclusion, the court looked to the Copyright Act’s compendium and held that Pellegrino’s “Signature Move” was a dance within the subject matter of copyright under the first prong of the copyright preemption test:
At issue therefore is whether dance falls within the subject matter of copyright. We conclude that it does. Specifically, we find that dance falls within the ambit of the copyright category “choreographic works.” 17 U.S.C. § 102(a)(4). Although “the term choreography is not synonymous with dance,” the U.S. Copyright Office, Compendium of U.S. Copyright Office Practices (3rd ed. 2017) (the “Compendium”), defines choreography as a “subset of dance [because] a work of authorship cannot be registered as a choreographic work unless it is comprised of dance steps, dance movements, and/or dance patterns.” Id. § 805.5(B)(3); see also id. § 805.5(B) (“The dividing line between copyrightable choreography and uncopyrightable dance is a continuum, rather than a bright line.”). In fact, to register a claim to copyright in a choreographic work, the U.S. Copyright Office requires that “the [proposed] work is a dance.” Id. § 805.4. We therefore conclude that the Signature Move, which is alleged to be a dance, is the appropriate subject matter of copyright law in satisfaction of the first prong of the test for copyright preemption.
Pellegrino v. Epic Games, Inc., No. CV 19-1806, 2020 WL 1531867, at *8 (E.D. Pa. Mar. 31, 2020).
Whether the Running Man dance could be subject to copyright protection is a closer question. It has some characteristics of a choreographic work: it consists of rhythmic movements in a defined space, has music accompaniment, and was presented before an audience. ECF No. 27-2; U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 805.2 (3rd ed. 2017). However, it could also be compared to a dance step, like “the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet” and therefore would not be copyrightable. Id. § 805.5(A). The Running Man also potentially could be characterized as a “social dance” given that it was widely enjoyed and performed by thousands of members of the public. Id. § 805.5(B). In short, the Running Man is somewhere on the continuum between copyrightable choreography and uncopyrightable dance.
Fortunately, the question of precisely where on that continuum the Running Man falls does not need to be decided. Given that the scope of copyright preemption is broader than that of copyright protection, it is sufficient here to find that the Running Man is within the “general subject matter” of copyright under a choreographic work. Fin. Info., Inc. v. Moody's Inv'rs Serv., 808 F.2d 204 (2d Cir. 1986) (quoting H.R. Rep. No. 1476, 94th Cong., 2d Sess., 131 reprinted in 1976 U.S. Code Cong. & Ad. News, 5659, 5747); see also Berge, 104 F.3d at 1463; Alliance for Telcoms. Indus. Sols., Inc. v. Hall, No. CCB-05-440, 2007 WL 3224589, at *10 (D. Md. Sept. 27, 2007). Therefore, like the court in Pellegrino found as to Leo Pellegrino’s “Signature Move,” I find that the Running Man dance is within the subject matter of copyright law, satisfying the first prong of the test for copyright preemption.
Conclusion
Plaintiffs seek to place the same square peg into eight round holes in search of a cause of action against Epic Games for its use of the Running Man dance in its game Fortnite. But Plaintiffs’ claims that Epic Games copied the dance do not support any of their theories. Plaintiffs’ common law causes of action for invasion of the right of privacy/publicity, unfair competition, and unjust enrichment are dismissed based on preemption under the Copyright Act. Similarly, their claims for unfair competition and false designation of origin under the Lanham Act are dismissed because their allegations are in the domain of copyright law and not the Lanham Act. Finally, Plaintiffs remaining Lanham Act and common law trademark claims are dismissed for failure to plausibly allege a valid trademark. Because Plaintiffs already amended their complaint once in light of these deficiencies, further amendment would be futile and Plaintiffs’ claims are dismissed with prejudice.
Check back for Part II next week!
Full Case Opinion Available At:
Brantley v. Epic Games, Inc., No. 8:19-CV-594-PWG, 2020 WL 2794016, at *12 (D. Md. May 29, 2020)
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