Fortnite creator Epic Games is facing yet another lawsuit over copying dance emotes without permission. Two former University of Maryland basketball players have sued the company for its “Running Man” Fortnite emote, which allegedly copies a dance they popularized in 2016. Their complaint accuses Epic of copyright infringement and violating the players’ publicity rights — arguing that the publisher has “consistently sought to exploit African-American talent, in particular in Fortnite, by copying their dances and movement.”
Jaylen Brantley and Jared Nickens say they created the “distinctive and immediately recognizable” dance behind the “Running Man Challenge,” a viral phenomenon that got Brantley and Nickens invited onto The Ellen Degeneres Show for a performance. Last year, Epic introduced an extremely similar-looking Fortnite emote called “Running Man.” Brantley and Nickens claim that the dance is “synonymous” with them, and that Epic shouldn’t be able to copy it without getting permission or offering compensation.
This is a common complaint: Epic already faces lawsuits from Fresh Prince of Bel-Air star Alfonso Ribeiro, rappers 2 Milly and BlocBoy JB, and viral stars “Orange Shirt Kid” and Russell “Backpack Kid” Horning. It’s also a largely untested and controversial one, since dance moves can only be copyrighted if they’re sufficiently complex. And even if the dance can be copyrighted, it’s not always clear who holds those rights — the US Copyright Office suggested that Ribeiro’s dance might be owned by a network, for instance.
Ownership might be an issue here, because Brantley and Nickens didn’t start the Running Man Challenge. It was apparently launched by a pair of high schoolers named Kevin Vincent and Jerry Hall, who also appeared on The Ellen Degeneres Show. And Fader traced the dance move itself back to New Jersey club culture. Sports Illustrated does credit the basketball players with popularizing the challenge, but Brantley himself describes getting the inspiration from an earlier video:
“Jared [Nickens] came up to me and was like, hey, let me show you something. Some kid he knew from Jersey was doing the dance to that song. We were like hey let’s just make a funny video and try to make people laugh.”
The law firm representing Brantley and Nickens didn’t immediately respond to an email requesting comment on the lawsuit, and neither did Epic Games.
No matter who owns the dance, the complaint about Epic exploiting the work of black artists could still stand — and these two aren’t the first people to raise it. In addition to the Running Man, 2 Milly’s and BlocBoy JB’s dances, and Ribeiro’s “Carlton dance,” Epic has appropriated moves from Snoop Dogg, Will Smith, social media star Marlon Webb, and actor Donald Faison. (Although Epic is far from exclusively focused on black artists, since Korean rapper Psy’s “Gangnam Style” dance also is a Fortnite emote, for instance.)
The lawsuit rightly notes that Fortnite can end up divorcing these dance moves from their cultural context, with players posting “thousands of videos [of] themselves performing the Running Man Emote with the hashtag #fortnitedance, without referencing the Running Man.” But we don’t know whether that constitutes a copyright violation. And this particular lawsuit might raise some fundamental questions about who “owns” a dance move — a kind of artistic expression that’s often created and remixed across an entire community.