Brantley v. Epic Games, Inc. - 463 F. Supp. 3d 616 (D. Md. 2020)

Rule:

Section 102(a) of the Copyright Act explicitly includes within its list of protected authorships, "choreographic works." 17 U.S.C.S § 102(a). Section 102(b) provides that copyright protection extends to original works of authorship in a tangible medium including choreographic works, but not for any ideas embodied in a work. 

Facts:

Plaintiffs Jaylen Brantley and Jared Nickens brought an against Defendant Epic Games, Inc. for the alleged unauthorized appropriation of the dance the "Running Man" that they allegedly created, named, and popularized. Plaintiffs claimed 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. Defendant Epic Games is the creator and developer of the Fortnite video game franchise. They brought 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 sought both compensatory and injunctive relief. Epic Games moved to dismiss the claims against it.

Issue:

Did the defendant violate the Copyright and Lanham Act?

Answer:

No.

Conclusion:

Section 102(a) of the Copyright Act explicitly includes within its list of protected authorships, "choreographic works." 17 U.S.C.S. § 102(a). U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 805.1 (3rd ed. 2017). Plaintiffs argued that they allege that the Running Man is a "dance," and not a "choreographic work," and therefore it is not the subject of copyright. Choreographic works are distinguished from minimis movements, dance steps, social, dances, and simple routines, which are not copyrightable. 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. Plaintiffs' common law causes of action for invasion of the right of privacy/publicity, unfair competition, and unjust enrichment were dismissed based on preemption under the Copyright Act. Similarly, claims for unfair competition and false designation of origin under the Lanham Act were dismissed because their allegations were in the domain of copyright law and not the Lanham Act. Finally, Plaintiffs’ remaining Lanham Act and common law trademark claims were dismissed for failure to plausibly allege a valid trademark.