By  Hayley Duquette

As reported in a previous blog, the creators of Fortnite were hit with several lawsuits in late 2018 regarding their alleged unauthorized use of famous dance moves.  Now joining the list of individuals to sue the video game developer are Jared Nickens and Jaylen Brantley, who filed a joint complaint on February 25 alleging copyright infringement, right of publicity violation, and unfair competition.  According to their complaint, Nickens and Brantley “created, named and/or popularized” a dance craze known as the Running Man back in early 2016 when they were on the University of Maryland men’s basketball team.  They posted videos of themselves performing the dance all over social media, which collectively received over 100 million views and were among the top Google searches in 2016.  Nickens and Brantley challenged other college basketball players to post similar videos of themselves doing the dance on social media, leading to the viral Running Man challenge that garnered nationwide attention and landed the duo an appearance on “The Ellen DeGeneres Show” where they performed the dance.

Epic Games released Fortnite in 2017, which has since exploded in popularity. The game offers players a wide selection of emotes that they can purchase for their avatars, including a collection of dance moves.  It is the company’s method of “copying and coding dances and movements directly from popular videos” in creating these emotes that have landed Epic Games in hot water, as the alleged owners of several dances that the emotes depict are claiming that their rights have been violated by this unauthorized copying.  The emote at issue in the most recent lawsuit is conspicuously named––you guessed it––the “Running Man.”  Comparison of the emote and the dance leaves no room for Epic Games to deny that the emote was intended to be an exact simulation of the dance popularized by Nickens and Brantley.

Nearly all media coverage of these lawsuits have focused on the copyright infringement claims, with most commenters (including this author) concluding that the plaintiffs’ will unlikely be able to prove that their respective dances are even eligible for copyright protection.  Without establishing valid copyright ownership in the dance moves, the plaintiffs cannot succeed on their claims of copyright infringement.  However, this is not to say that Epic Games is likely to escape all liability.  Each complaint filed against the company contains a cause of action for violation of the right of publicity.  In California, where the first three complaints were filed, the right of publicity is encompassed by a statute prohibiting the unauthorized use of a person’s “name, voice, signature, photograph, or likeness, in any manner” for commercial purpose.  Nickens and Brantley filed their complaint in Maryland, where the common law recognizes the misappropriation of a person’s identity for commercial value as an actionable tort.  To successfully prove that Epic Games violated their right of publicity, each plaintiff will have to show that the company used their likeness to generate profit without their consent.  Determination of the right of publicity claims will likely turn on whether the dance moves at issue constitute the individual’s likeness.  While the law gives no clear definition of likeness, courts in the past have implied that likeness may include anything that can be used to readily identify the plaintiff.  Examples of such identifiers that courts have treated as a person’s likeness include a catch-phrase, a distinctly decorated racecar, and a robot.

Out of the four lawsuits, two stand out as having especially strong arguments that their right of publicity was violated by the making and selling of the Fortnite emotes: Alfonso Ribeiro, who played “Carlton” on the Fresh Prince of Bel-Air, and rapper Terrence Ferguson (aka 2 Milly).  It is imaginable that a court could find the emote “Fresh” to immediately identify Ribeiro and his signature dance that is has been widely known as the Carlton since the early 1990s.  If the Carlton dance is found to constitute Ribeiro’s likeness, then it will be easy for him to argue that Epic Games used his likeness for commercial purpose in selling the “Fresh” emote.  Similarly, it is possible that Epic’s “Swipe It” emote will be found to readily identify rapper 2 Milly and his Milly Rock dance that he coined in 2014.  The similarity in names may strengthen 2 Milly’s argument that his right of publicity extends to the Milly Rock dance.  In both cases, it seems obvious that use of the dances was for commercial purpose, as their complaints state that analysts have estimated the Fornite in-game purchases (including emotes) to have generated between $1 billion to $2 billion in revenue since the game was released in 2017.

As to Nickens and Brantley’s case, Epic Games could hardly convince a court that their “Running Man” emote does not immediately identify the exact same Running Man dance popularized by the pair.  However, Epic Games may avoid liability for violating the right of publicity if they can show that the Running Man dance is not widely associated with Nickens and Brantley enough to constitute their likeness.  Considering that a substantial amount of people may only know of the dance in relation to the Running Man “challenge” and not necessarily see it as identifying Nickens and Brantley, it is difficult to predict whether it will fall under likeness.  Similar can be said for the fourth individual suing Epic Games, Russell Horning (aka Backpack Kid).  Horning claims to have become synonymous with the Floss dance, which he performed during an episode of “Saturday Night Live” in 2017.  If Epic Games can show that their “Floss” emote simply invokes an association with the Floss dance and not with Horning himself, they could avoid liability for the alleged right of publicity violation.

In all four cases, a finding that Epic Games violated the right of publicity will depend on whether each plaintiff is able to show that they are immediately associated with their respective dance moves as depicted by the Fortnite emotes.  If it is likely that a significant amount of people immediately think of the plaintiff upon viewing the emote at issue, then the plaintiff’s right of publicity should extend to protect the unauthorized use of their dance move.

Student Bio: Hayley Duquette is currently a second-year law student at Suffolk University Law School, concentrating in Intellectual Property. She is a staffer on the Journal of High Technology Law. Prior to law school, Hayley received a Bachelor of Arts Degree in English from Endicott College where she graduated with magna cum laude honors.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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