Jaylen Brantley and Jared Nickens, former college basketball players for the University of Maryland Terrapins, are suing Epic Games, along with game creators, over the use of the “Running Man” dance in the popular video game, Fortnite. In this game, players can unlock this Running Man dance for $5 to use for their own characters. The Running Man dance became popular on The Ellen DeGeneres Show in 2016 when Brantley and Nickens appeared on the show to perform the dance.
According to the Baltimore Sun, however, the two former Terps explained on the episode how they took the dance, which was started by former high school students Kevin Vincent and Jeremiah Hall, and used it to “keep our teammates loose in the locker room,” which ultimately led to their appearance on the show.
Epic Games, the creator of Fortnite, filed to dismiss the suit by arguing that the plaintiffs’ claims are preempted by the Copyright Act and the dance is protected by the First Amendment. However, the opposition to the defendants’ Motion to Dismiss states that “. . . the motion of the human body can be as valuable as a person’s face or name — if not more so.” The response also acknowledges that Brantley and Jared gave the dance viral fame without mentioning The Ellen DeGeneres Show or that Brantley and Nickens did not actually create the dance themselves.
One legally unaffiliated culprit for contention regarding Brantley and Nickens might be that, because the NCAA does not allow college athletes to receive gifts above a certain dollar amount, the players only received pieces of customized underwear on The Ellen DeGeneres Show while Vincent and Hall received $10,000 earlier on the same episode for performing the same dance.
This is yet another lawsuit filed against Epic Games over dance moves featured in Fortnite Battle Royale. The most notable example was when Alfonso Ribeiro, the actor who famously played Carlton Banks on The Fresh Prince of Bel-Air, sued Epic Games over the use of the famous “Carlton Dance” he created and performed throughout the show. Epic Games did not ask Ribeiro for permission before programming the players to allow them to purchase the ability to perform the “Carlton Dance.”
In their motion to dismiss response, Brantley and Nickens also contended Epic Games’ assertion that the pair cannot trademark the Running Man by citing that the dance cannot be trademarked.
According to Tech Crunch, Epic Games gained over $3 billion in profits in 2018 “fueled by the continued success of Fortnite.” Although Fortnite is free to play, players purchase digital items within the game itself, such as the ability to perform the Running Man dance. Tech Crunch also reported that the company’s valuation rose to $15 billion by the end of 2018.