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Fortnite Maker Escapes ‘Running Man’ Dance Trademark Claims

June 1, 2020, 4:53 PM

Epic Games Inc., the maker of the popular video game “Fortnite,” beat trademark and right of publicity claims brought in Maryland federal court over the game’s use of the “Running Man” dance.

The Friday decision is the latest development in a series of cases where Epic has been sued for letting players imitate famous dances by the people who allegedly popularized them.

Jaylen Brantley and Jared Nickens said the “Running Man” has become synonymous with them after their “Running Man Challenge” went viral. They said Epic copied their movements for Fortnite’s “Running Man” emote, which players can buy and equip to their avatars.

Most of Brantley and Nickens’s claims were preempted by the Copyright Act. The dance is within the general subject matter of copyright law, and the rights implicated in the case are “squarely” within the realm of the Copyright Act because they’re based on allegations that Epic copied the dance, the court said.

The dancers’ federal trademark infringement and dilution claims failed because the dance isn’t a valid trademark and didn’t identify a good or service.

Brantley and Nickens’ argument that the dance is a trademark for their performances was “too clever by half,” the court said.

“The Running Man dance cannot be a trademark for performances of the Running Man dance,” the court said.

Judge Paul W. Grimm wrote the opinion.

Pierce Bainbridge Beck Price & Hecht LLC and the Jaklitsch Law Group represented the dancers. Kirkland & Ellis LLP and Kramon & Graham PA represented Epic.

The case is Brantley v. Epic Games Inc., D. Md., No. 8:19-cv-00594, 5/29/20.

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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