Case 8:19-cv-00594-PWG Document 31 Filed 05/29/20 Page 1 of 23
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`Southern Division
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`JAYLEN BRANTLEY and JARED
`NICKENS,
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`Plaintiffs,
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`v.
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`EPIC GAMES, INC., JOHN AND JANE
`DOES 1 THROUGH 50, and JOHN DOE
`CORPORATIONS 1 THROUGH 10,
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`Defendants.
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`Case No.: 8:19-cv-594-PWG
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`MEMORANDUM OPINION AND ORDER
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`Plaintiffs Jaylen Brantley and Jared Nickens bring this action against Defendant Epic
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`Games, Inc. for the alleged unauthorized appropriation of the dance the “Running Man” that
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`they allegedly created, named, and popularized.1 Plaintiffs claim that Epic Games
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`intentionally copied the movements of the “Running Man” dance and incorporated them as a
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`feature of its highly popular online video game Fortnite. They bring eight causes of action
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`under common law and the federal Lanham Act for invasion of the right of privacy/publicity,
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`unfair competition, unjust enrichment, trademark infringement, trademark dilution, and false
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`designation of origin. Plaintiffs seek both compensatory and injunctive relief. Epic Games
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`now moves to dismiss the claims against it.2 For the reasons discussed below, Epic Games’
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`motion to dismiss is granted and Plainitffs’ claims are dismissed with prejudice.
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`1 Brantley and Nickens also name as Defendants John and Jane Does 1 through 50 and John Doe
`Corporations 1 through 10 as “the creators and developers of the Fortnite video game franchise.”
`ECF No. 18, Am. Compl., ¶ 6. I will refer to all defendants collectively as “Epic Games” or
`2 The motion is fully briefed. See ECF Nos. 27, 28, 29. A hearing is not necessary. See Loc. R.
`105.6 (D. Md. 2018).
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`Case 8:19-cv-00594-PWG Document 31 Filed 05/29/20 Page 2 of 23
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`Background
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`Plaintiffs Brantley and Nickens allege that in 2016 they created, named, and popularized
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`the dance move which they titled the “Running Man.” Am. Compl. ¶¶ 2, 3, 9. Brantley and
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`Nickens allege that they incorporated the dance into breaks at University of Maryland
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`basketball games, and that the dance subsequently went viral on social media. Id. ¶ 10.
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`Plaintiffs claim to have incited the online popularity of the Running Man by challenging others
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`to imitate the dance and post the performance on social media. Id. They state that the
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`Running Man videos have over 100 million views on YouTube and thousands of people have
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`posted videos of themselves performing the dance. Id. ¶ 11.
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`The popularity of the “Running Man Challenge” allegedly exploded in part after a live
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`performance of the dance by Brantley and Nickens on the Ellen DeGeneres Show. Id. ¶ 2.
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`While Plaintiffs repeatedly allege in their complaint that they “created” the dance, during the
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`Ellen segment two high school students from New Jersey – Kevin Vincent and Jeremiah Hall –
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`are credited with creating the dance. ECF No. 27-2 (video of Ellen segment).3 Brantley and
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`Nickens appear later in the segment and state that they copied the dance from a video that they
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`saw on Instragram. Id. Nonetheless, Brantley and Nickens claim that the “Running Man” has
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`become synonymous with them. Am. Compl. ¶ 13.
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`Defendant Epic Games is the creator and developer of the Fortnite video game
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`franchise. Id. ¶ 16. Fortnite is a free-to-play online multiplayer video game which supports
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`3 Although the video of the Ellen segment was included as an exhibit to Epic Games’ Motion to
`Dismiss, and not attached to the Complaint, I take judicial notice of it without converting the
`motion to one for summary judgment, as the video is central to Plaintiffs’ claims, was
`incorporated by reference in the Complaint, and its authenticity is not in dispute. See Am.
`Compl. ¶ 2; Witthohn v. Federal Ins. Co., 164 Fed. Appx. 395, 396 (4th Cir. 2006) (When
`reviewing a motion to dismiss, “a court may consider . . . documents central to plaintiff's claim,
`and documents sufficiently referred to in the complaint so long as the authenticity of these
`documents is not disputed.”)
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`2
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`up to one hundred players during a single game. Id. ¶¶ 17, 18. Fortnite allows each player to
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`select and create their own individualized avatar which is extensively customizable. Id. The
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`players then compete in a battle-royale style shooting match where the last player standing is
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`declared the victor. Id. ¶ 17. At any point during the match, the player can command their
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`online avatar to perform programmed movements called “emotes” which express the player’s
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`emotions in the game. Id. ¶¶ 20, 21. Fortnite’s massive popularity can be attributed not just to
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`its gameplay, but also to the incorporation and popularity of in-game emotes. Id. ¶ 21.
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`Because Fortnite is free-to-play, the game is primarily supported by purchases made at
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`the game’s electronic storefront. Id. ¶ 18. At the electronic storefront, players can purchase
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`various customizations for their online characters including costumes, equipment, and unique
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`emotes. Id. In July 2018, Epic Games produced a new emote which was called the “Running
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`Man” emote (the “Emote”). Id. ¶ 26. The Emote could be purchased for roughly five dollars
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`on the Fortnite electronic storefront or purchased as part of a package included with the latest
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`installment of Fortnite. Id.
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`Brantley and Nickens allege that Epic Games created the Emote by impermissibly
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`copying the movements of the “Running Man” dance and profited from the sale of the Emote
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`on the Fortnite electronic storefront. Id. ¶¶ 26–28, 32. Brantley and Nickens bring a total of
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`eight causes of action against Epic Games under theories of invasion of the right of
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`privacy/publicity, unfair competition, unjust enrichment, trademark infringement, trademark
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`dilution, and false designation of origin. Epic Games moves to dismiss the claims against it.
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`Plaintiffs’ claims are subject to dismissal if they “fail[] to state a claim upon which relief
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`Standard of Review
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`can be granted.” Fed. R. Civ. P. 12(b)(6). The purpose of Rule 12(b)(6) “is to test the
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`sufficiency of a complaint and not to resolve contests surrounding the facts, the merits or the
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`applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
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`A pleading must meet the standard of Rule 8(a), which requires only “a short and plain
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`statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
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`The complaint must contain factual content, and more than “a formulaic recitation of the
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`elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). Therefore, mere legal
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`conclusions will not suffice. Iqbal, 556 U.S. at 678. Finally, the factual allegations presented
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`in the complaint must be construed “in the light most favorable to [the] plaintiff.” Adcock v.
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`Freightliner LLC, 550 F.3d 369, 374 (4th Cir. 2008).
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`Epic Games argues that the Copyright Act preempts Brantley and Nickens’ claims for
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`Discussion
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`invasion of the right of privacy/publicity (Count I), common law unfair competition (Count III)
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`and unjust enrichment (Count IV). Similarly, Epic Games argues that Brantley and Nickens’
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`claims for Lanham Act unfair competition (Count II) and false designation of origin (Count VII)
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`are precluded by the Copyright Act. Finally, Epic Games argues that Plaintiffs failed to
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`plausibly allege a valid trademark for their claims for Lanham Act trademark infringement
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`(Count V), common law trademark infringement (Count VI), and Lanham Act trademark dilution
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`(Count VII). 4 I agree.
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`I.
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`Plaintiffs’ Common Law Privacy, Unfair Competition, and Unjust Enrichment
`Claims are Preempted by the Copyright Act
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`The Copyright Act expressly preempts a broad array of other claims. Specifically, § 301
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`4 Epic Games also argues that Brantley and Nickens’ claims should be dismissed under First
`Amendment principles and for failure to state a claim. Because I dismiss the claims for the
`reasons discussed herein, I do not address these arguments.
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`of the Copyright Act states as follows:
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`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.
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`17 U.S.C. § 301. This statutory language establishes a two-prong test for determining copyright
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`preemption: “first, the work must be within the scope of the subject-matter of copyright as
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`specified in 17 U.S.C. §§ 102, 103, and second, the rights granted under state law must be
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`equivalent to any exclusive rights within the scope of federal copyright as set out in 17 U.S.C. §
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`106.” U.S. ex rel. Berge v. Bd. of Trustees of the Univ. of Alabama, 104 F.3d 1453, 1463 (4th
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`Cir. 1997) (quoting Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 229 (4th Cir. 1993)) (internal
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`quotation marks omitted). I analyze each of these prongs in turn.
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`a. The Running Man is Within the Subject Matter of Copyright
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`Under the first prong of the test for copyright preemption, I must consider whether the
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`work in question – the Running Man dance – falls within the subject matter of copyright as
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`specified in sections 102 and 103 of the Copyright Act. As relevant here, section 102(a)
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`provides that “Copyright protection subsists, in accordance with this title, in original works of
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`authorship fixed in any tangible medium of expression, now known or later developed, from
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`which they can be perceived, reproduced, or otherwise communicated, either directly or with the
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`aid of a machine or device. Works of authorship include the following categories: . . .
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`choreographic works.” 17 U.S.C. § 102(a). Section 102(b) provides that “[i]n no case does
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`copyright protection for an original work of authorship extend to any idea, procedure, process,
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`system, method of operation, concept, principle, or discovery, regardless of the form in which it
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`is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b). In other
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`words, copyright protection extends to original works of authorship in a tangible medium
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`including choreographic works, but not for any ideas embodied in a work.
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`However, the scope of copyright preemption is broader than the scope of copyright
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`protection. See Berge, 104 F.3d at 1463 (rejecting argument that a claim is not preempted
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`because it falls within “ideas and methods” excluded from copyright protection because “the
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`shadow actually cast by the Act's preemption is notably broader than the wing of its
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`protection.”); Alliance for Telcoms. Indus. Sols., Inc. v. Hall, No. CCB-05-440, 2007 WL
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`3224589, at *10 (D. Md. Sept. 27, 2007) (“The inquiry is limited to whether a work comes under
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`the scope of the Act, and not whether it is actually protected . . . .”); see also Nat'l Basketball
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`Ass'n v. Motorola, Inc., 105 F.3d 841, 849 (2d Cir. 1997) (“Copyrightable material often
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`contains uncopyrightable elements within it, but [the Copyright Act] . . . bars state-law . . .
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`claims with respect to uncopyrightable as well as copyrightable elements.”); Fin. Info., Inc. v.
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`Moody's Inv'rs Serv., 808 F.2d 204 (2d Cir. 1986) (“As long as the work fits within one of the
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`general subject matter categories of sections 102 and 103, the bill prevents the States from
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`protecting it even if it fails to achieve Federal statutory copyright because it is too minimal or
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`lacking in originality to qualify.”) (quoting H.R. Rep. No. 1476, 94th Cong., 2d Sess., 131
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`reprinted in 1976 U.S. Code Cong. & Ad. News, 5659, 5747).
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`The analysis under this first prong of the test for copyright preemption is the same for
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`Brantley and Nickens’ invasion of the right of privacy/publicity, common law unfair competition
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`and unjust enrichment clams, because they are all based on the alleged copying and use of the
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`Running Man dance. See Am. Compl. ¶¶ 27–28, 36–37, 52–53, 60–61. Section 102(a) of the
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`Copyright Act explicitly includes within its list of protected authorships, “choreographic works.”
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`17 U.S.C. § 102(a). Plaintiffs argue that they allege that the Running Man is a “dance,” and not
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`a “choreographic work,” and therefore it is not the subject of copyright. The U.S Copyright
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`Office has published a Compendium of U.S. Copyright Practices that provides an explanation of
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`how it considers the distinction between a choreographic work and dance, which provides a
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`useful guide:
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`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).
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`U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 805.1 (3rd ed. 2017).
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`The Copyright Office states that choreographic works typically contain one or more of the
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`following elements: rhythmic movements in a defined space, compositional arrangement, music
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`or textual accompaniment, dramatic content, presentation before an audience, and execution by
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`skilled performers. Id. § 805.2.
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`Choreographic works are distinguished from de minimis movements, dance steps, social,
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`dances, and simple routines, which are not copyrightable. The Copyright Office explains:
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`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)
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`§ 450.06). . . .
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`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.
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`Id. § 805.5(A)–(B). Thus, “[t]he dividing line between copyrightable choreography and
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`uncopyrightable dance is a continuum, rather than a bright line. At one extreme are ballets,
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`modern dances, and other complex works that represent a related series of dance movements and
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`patterns organized into a coherent compositional whole. At the other extreme are social dances,
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`simple routines, and other uncopyrightable movements . . . . Many works fall somewhere in
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`between.” Id. § 805.5(B).
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`In a similar case, Pellegrino v. Epic Games, Inc., the United States District Court for the
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`Eastern District of Pennsylvania recently analyzed this distinction between choreography and
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`dance for the purposes of copyright preemption regarding another Fortnite emote. Pellegrino v.
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`Epic Games, Inc., No. CV 19-1806, 2020 WL 1531867 (E.D. Pa. Mar. 31, 2020). In that case,
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`Leo Pellegrino, a professional saxophone player, alleged that Epic Games copied his signature
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`dance movement involving turning his legs and feet to the side while playing the saxophone to
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`create the “Phone It In” emote in the Fortnite game. Id. at *2. Like here, Pellegrino brought
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`claims for violation of rights of privacy and publicity, unjust enrichment, unfair competition,
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`trademark infringement, and trademark dilution. Id. The Court dismissed Pellegrino’s state law
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`trademark infringement claim after finding that it was preempted by the Copyright Act.5 In
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`5 The court dismissed Pellegrino’s other claims, except for his Lanham Act claim for false
`endorsement, for other reasons. See Pellegrino v. Epic Games, Inc., No. CV 19-1806, 2020 WL
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`reaching this conclusion, the court looked to the Copyright Act’s compendium and held that
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`Pellegrino’s “Signature Move” was a dance within the subject matter of copyright under the first
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`prong of the copyright preemption test:
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`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.
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`Pellegrino v. Epic Games, Inc., No. CV 19-1806, 2020 WL 1531867, at *8 (E.D. Pa. Mar. 31,
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`2020).
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`Whether the Running Man dance could be subject to copyright protection is a closer
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`question. It has some characteristics of a choreographic work: it consists of rhythmic
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`movements in a defined space, has music accompaniment, and was presented before an audience.
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`See Am. Compl. ¶¶ 9–10; ECF No. 27-2; U.S. Copyright Office, Compendium of U.S. Copyright
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`Office Practices § 805.2 (3rd ed. 2017). However, it could also be compared to a dance step, like
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`“the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet” and
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`therefore would not be copyrightable. Id. § 805.5(A). The Running Man also potentially could
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`be characterized as a “social dance” given that it was widely enjoyed and performed by
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`thousands of members of the public. Id. § 805.5(B). In short, the Running Man is somewhere on
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`the continuum between copyrightable choreography and uncopyrightable dance. Id.
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`1531867, at *11 (E.D. Pa. Mar. 31, 2020).
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`Fortunately, the question of precisely where on that continuum the Running Man falls
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`does not need to be decided. Given that the scope of copyright preemption is broader than that
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`of copyright protection, it is sufficient here to find that the Running Man is within the “general
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`subject matter” of copyright under a choreographic work. Fin. Info., Inc. v. Moody's Inv'rs Serv.,
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`808 F.2d 204 (2d Cir. 1986) (quoting H.R. Rep. No. 1476, 94th Cong., 2d Sess., 131 reprinted in
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`1976 U.S. Code Cong. & Ad. News, 5659, 5747); see also Berge, 104 F.3d at 1463; Alliance for
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`Telcoms. Indus. Sols., Inc. v. Hall, No. CCB-05-440, 2007 WL 3224589, at *10 (D. Md. Sept.
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`27, 2007). Therefore, like the court in Pellegrino found as to Leo Pellegrino’s “Signature
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`Move,” I find that the Running Man dance is within the subject matter of copyright law,
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`satisfying the first prong of the test for copyright preemption.
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`b. The Rights to be Vindicated are Equivalent to those Protected by Copyright
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`Under the second prong of the copyright preemption test, the rights to be preempted must
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`be equivalent to the rights protected by the Copyright Act. Berge, 104 F.3d at 1463. Under
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`section 106 of the Copyright Act, copyright owners are granted the exclusive right to: (1)
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`reproduce the copyrighted work; (2) to prepare derivative works; (3) to distribute copies of the
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`copyrighted work by sale, rental, lease, or lending; (4) to perform the copyrighted work publicly;
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`and (5) to display the copyrighted work publicly. 17 U.S.C. § 106. Under the test provided in
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`Berge, a claim avoids preemption when it contains an “extra element that changes the nature of
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`the [] action so that it is qualitatively different from a copyright infringement claim.” Berge, 104
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`F.3d at 1463 (internal quotation marks omitted) (emphasis in original).
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`Courts
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`in
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`this Circuit have repeatedly found
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`that claims based on alleged
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`misappropriation protect the same exclusive rights under the Copyright Act. See Progressive
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`Corp. v. Integon P & C Corp., 947 F.2d 942 (4th Cir. 1991); Lowry’s Reports, Inc. v. Legg
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`Mason, Inc., 271 F. Supp. 2d 737, 756 (D. Md. 2003); Costar Group Inc. v. Loopnet, Inc., 164 F.
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`Supp. 2d 688, 713–14 (D. Md. 2001). These cases are instructive.
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`In Progressive, the Fourth Circuit upheld the district court’s dismissal of Progressive’s
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`state law unfair competition and tortious interference claims based on Copyright Act preemption.
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`Progressive Corp. v. Integon P & C Corp., 947 F.2d 942 (4th Cir. 1991). In that case,
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`Progressive alleged that Integon had copied one of its insurance manuals that contained its
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`method for determining which insurance risks to accept and at what price. Id. The Fourth
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`Circuit observed that “[c]ourts have consistently held that state unfair competition claims based
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`on misappropriation protect the same rights as Congress sought to protect by the Copyright Act
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`and are therefore preempted.” Id. at 942 (citing Del Madera Properties v. Rhodes and Gardner,
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`Inc., 820 F.2d 973 (9th Cir.1987), abrogated on other grounds by Fogerty v. Fantasy, Inc., 510
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`U.S. 517 (1994)); Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986); Ehat v.
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`Tanner, 780 F.2d 876, 877 (10th Cir.1985). The Fourth Circuit found that the misappropriation
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`claim was “part and parcel of the copyright claim” and was therefore preempted. Id. Likewise,
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`the Fourth Circuit found that the claim for tortious interference with business relations was
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`preempted, notwithstanding that Progressive had pled the four elements of the tort, which differ
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`from those of a copyright claim. The key was that although the specific elements of the tort
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`differed, they were still based on the same alleged conduct that was within the scope of copyright
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`protection. Id. (“‘[T]he fact that cross-appellants pleaded additional elements of awareness and
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`intentional interference, not a part of the copyright claim, goes merely to the scope of that right;
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`it does not establish qualitatively different conduct on the part of the infringing party, nor a
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`fundamental nonequivalence between the state and federal rights implicated.’”) (quoting Harper
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`& Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 201 (2d Cir. 1983), rev'd on other
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`grounds, 471 U.S. 539 (1985)).
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`Lowry involved a claim for unjust enrichment based on Legg Mason’s use of Lowry’s
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`proprietary stock market reports. Lowry's Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d
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`737, 742 (D. Md. 2003). Legg Mason paid for one subscription of Lowry’s reports, but then
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`disseminated the information to its brokers around the country. Id. at 752–53. On a summary
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`judgment record, the district court held that the Copyright Act preempted Lowry’s unjust
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`enrichment claim. Although Lowry characterized its unfair competition claim as a “hot news”
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`claim, and argued that this type of claim contains “extra elements” not found in the Copyright
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`Act, the Court found that “none of the ‘elements’ it posits of such a claim describes behavior
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`other than reproduction, performance, distribution, or display.” Id. at 756. Accordingly, the
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`court held that “the ‘unfair’ conduct of which Lowry's complains does not differ qualitatively
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`from conduct that ‘would infringe one of the exclusive rights’ granted by the Copyright Act” and
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`was therefore preempted. Id. at 755–56.
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`The court in Costar examined a dispute involving an internet-based company’s alleged
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`misuse of real estate photographs owned by the plaintiffs Costar. Costar Group Inc., 164 F.
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`Supp. 2d at 691. Costar brought a series of claims, including unjust enrichment, unfair
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`competition, and tortious interference with business relations. Id. at 712. Costar argued that
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`there were “extra-elements” to these claims that precluded preemption under the Copyright Act.
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`Id. at 713. But the court disagreed, finding that each of the claims concerned the same act of
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`copying the photographs. See id. at 714 (“The same act which constitutes LoopNet's alleged
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`copyright infringement, the unauthorized copying of CoStar's photographs, also constitutes
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`CoStar's unfair competition claim. Therefore, this claim does not satisfy the “extra-element” test
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`and so is equivalent to CoStar's claim under the Copyright Act.”); id. (“[A]s with CoStar's unfair
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`competition claims, the court fails to discern a true claim for passing off and instead sees only a
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`disguised copyright claim.”); id. at 715 (“Even accepting CoStar's claims that LoopNet's alleged
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`interference was with existing licenses as opposed to prospective relationships, the present case
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`does not present an additional element . . . . Accordingly, CoStar's intentional interference claim
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`is also preempted by the Copyright Act.”).
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`Like the claims in Progressive, Lowry, and Costar, Brantley and Nickens bring common
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`law claims based on alleged unauthorized copying of the Running Man, and these claims are
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`therefore preempted by the Copyright Act. I discuss each claim in turn.
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`First, Brantley and Nickens bring a claim for “Invasion of the Right of Privacy
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`(Publicity).” Plaintiffs do not elaborate on the distinction between privacy and publicity or
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`allege what state’s laws they bring this claim under. They allege that Epic Games
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`“misappropriated Plaintiffs’ identities” by “capturing and digitally copying” their signature
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`movement, the Running Man, to create the emote that “allows the player’s avatars to execute the
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`Running Man identically to Plaintiffs’ version.” Am. Compl. ¶ 37. Brantley and Nickens further
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`allege that Epic did not obtain their consent or authorization, and therefore “willfully and
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`intentionally used Plaintiff’s [sic] likenesses in violation of their rights of publicity.” Am.
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`Compl. ¶ 38. Plaintiffs argue that their claim based on misappropriation of their identities and
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`likenesses contains “extra elements” that preclude preemption, citing one case from Maryland
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`and cases from the Third Circuit, Sixth Circuit, the District of New Jersey, and the Central
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`District of California. ECF No. 28 at 9 (citing Lawrence v. A.S. Abell Co., 475 A.2d 448, 451
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`(Md. 1984); McFarland v. Miller, 14 F.3d 912, 918 (3d Cir. 1994); Landham v. Lewis Galoob
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`Toys, Inc., 227 F.3d 619, 623 (6th Cir. 2000); Facenda v. N.F.L. Films, Inc., 542 F.3d 1007,
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`1027 (3d Cir. 2008); Prima v. Darden Restaurants, Inc., 78 F. Supp. 2d 337, 352–53 (D.N.J.
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`2000); Estrada v. Toyota Motor Sales U.S.A., Inc., No. CV 08-05992 GAF (AJWx), 2009 WL
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`10671571, at *7 (C.D. Cal. Feb. 11, 2009).
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`Of these cases, Lawrence v. A.S. Abell Co., 475 A.2d 448 (Md. 1984) and McFarland v.
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`Miller, 14 F.3d 912 (3d Cir. 1994) did not involve preemption. And while the courts in the
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`remaining cases declined to dismiss rights of publicity claims based on copyright preemption,
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`they do little to save Plaintiffs’ claims here. In other words, even though rights of publicity
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`claims are not preempted in some cases, that does not mean that they avoid preemption in every
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`case. Cf. Lowry's Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737, 756 (D. Md. 2003)
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`(“The Copyright Act may not preempt every state-law claim of unfair competition. Some “hot
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`news” claims may yet survive. . . . Lowry's claim, however, does not. The Copyright Act
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`preempts it.”) The key question is whether Plaintiffs state a claim that is “qualitatively different”
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`than the rights protected by the Copyright Act. Berge, 104 F.3d at 1463. And here Plaintiffs
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`claim is based on Epic Games allegedly “capturing and digitally copying” the Running Man
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`dance to create the Fortnite emote that “allows the player’s avatars to execute the Running Man
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`identically to Plaintiffs’ version.” Am. Compl. ¶ 37. This is squarely within the rights protected
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`by the Copyright Act. See 17 U.S.C. § 106 (granting copyright owners the exclusive rights to
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`reproduce works, prepare derivative works, distribute copies of work for sale, and perform and
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`display work publicly). At best Plaintiffs add the conclusory allegation that that the Running
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`Man dance is their “likeness.” Am. Compl, ¶ 38. But even granting inferences in favor of
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`Plaintiffs, the Court is not obligated to adopt such legal conclusions devoid of further factual
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`enhancement. See Ashcroft v. Iqbal, 556 U.S. at 678. Therefore, because the rights that
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`Plaintiffs seek to vindicate in their right of publicity/privacy claim are equivalent to those
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`protected by the Copyright Act, namely the reproduction, performance, distribution and display
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`of the Running Man, this claim is preempted by the Copyright Act and dismissed.
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`Similarly, Brantley and Nickens’ common law unfair competition claim is based on Epic
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`Games’ alleged misuse of the Running Man dance and their likeness associated with the dance.
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`Am. Compl. ¶¶ 26–35. Brantley and Nickens argue that public confusion over the origin of the
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`Running Man provides the “extra element” that make th