Judge tosses ex-basketball players’ ‘Fortnite’ dance lawsuit

SILVER SPRING, MARYLAND (AP) – A federal judge has dismissed a lawsuit in which two former University of Maryland men’s basketball players accused makers of the Fortnite video game of misappropriating a dance move that the ex-teammates popularised.

United States (US) District Judge Paul Grimm in Maryland ruled on Friday that the Copyright Act preempts claims that Jared Nickens and Jaylen Brantley filed in February 2019 against Epic Games Inc, creator of the wildly popular online shooting game.

Nickens and Brantley claimed the Cary, North Carolina-based company misappropriated their identities by digitally copying the “Running Man Challenge” dance that they performed in social media videos and on The Ellen DeGeneres Show in 2016.

Their copyright infringement lawsuit claimed the ‘Running Man’ dance ‘emote’ that Fortnite players can purchase for their characters is identical to the dance that Nickens and Brantley took credit for creating.

The judge said the key question is whether plaintiffs have a claim that is “qualitatively different” than the rights protected by the Copyright Act.

“And here Plaintiffs claim is based on Epic Games allegedly ‘capturing and digitally copying’ the Running Man dance to create the Fortnite emote that ‘allows the player’s avatars to execute the Running Man identically to Plaintiffs’ version.’” This is squarely within the rights protected by the Copyright Act,” he wrote.

Brantley, of Springfield, Mass, and Nickens, of Monmouth Junction, NJ, were seeking more than USD5 million in damages.

Epic Games spokesman Nick Chester declined to comment on Monday on the judge’s ruling.

Celebratory dances in Fortnite are called “emotes.” While the game itself is free to play, players can purchase the “emotes” and other character customisations.

Other artists, including Brooklyn-based rapper 2 Milly and The Fresh Prince of Bel-Air star Alfonso Ribeiro, also have sued Epic Games over other dances depicted in the shooting game. Ribeiro dropped his lawsuit against Epic Games last year after the US Copyright Office denied him a copyright for the ‘Carlton’ dance that his character performed on the 1990s sitcom.

Nickens and Brantley appeared on DeGeneres’ talk show alongside two New Jersey high school students who were posting videos of the dance online before the two University of Maryland basketball players 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,” Brantley said. “We were like, ‘Hey, let’s make a video and make everybody laugh.’”

One of their dance videos has millions of views on Instagram, YouTube and Facebook, their lawsuit said.

The judge dismissed their lawsuit’s claims for invasion of privacy, unfair competition and unjust enrichment based on preemption under the Copyright Act. He also threw out their trademark claims and claims accusing the company of unfair competition and “false designation of origin” under the Lanham Act.