Brantley & Nickens v. Epic Games

Case 8:19-cv-00594-PWG Document 1 Filed 02/25/19 Page 1 of 23
THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
JAYLEN BRANTLEY
7 Westwood Drive
Springfield, MA 01129
and Case No.
JAREDNICKENS
3206 Wildwood Court
Monmouth Junction, NJ 08852 : Complaint and Demand
for Jury Trial
Plaintiffs
V.
EPIC GAMES, Inc., a North Carolina

Corporation;
Serve Resident Agent: Canon Pence
620 Crossroads Boulevard
Gary, NC 27518-6965
and
JOHN AND JANE DOES 1 THROUGH 50

JOHN DOE CORPORATIONS 1 THROUGH 10
Defendants
COMPLAINT
Plaintiffs Jared Nickens and Jaylen Brantley ("Plaintiffs"), by
and through their undersigned counsel, assert the following claims
against Defendants, Epic Games, Inc. ("Epic"), John and Jane Does 1
through 50 and John Doe Corporations 1 through 10, (collectively referred

JAKL1TSCH LAW GROUP
143SO OLD MARLBORQ PIKE
UPPER MARLGORO. MD to as "Defendants"), and allege as follows:

20772
(301) 627-8700
I. NATURE OF ACTION
1. Through its unauthorized misappropriation of Plaintiffs'
highly popular dance craze, the "Running Man," in its video game Fortnite
Battle Royale ("Fortnite"), the Defendants have unfairly profited from
exploiting Plaintiffs' protected creative expression and likeness.
2. Plaintiffs created, named and/or popularized the Running
Man dance which exploded in popularity following its creation in early
2016, after it went "viral" once its accompanying video was posted on
the internet in April of 2016, and after Plaintiffs' appearance on "The
Ellen DeGeneres Show," that demonstrated the dance. Plaintiffs'
video has over 2 million views to date on Instagram alone, as well as
additional millions of views on YouTube and Facebook. Plaintiffs'
video was among the very top searched finds on Google for 2016.
3. Defendant capitalized on the Running Man's dance
popularity, particularly with its younger fans, by selling the dance as
an in-game purchase in Fortnite, under the name "Running Man,"
which players can buy to customize their avatars for use in the game.
This dance was immediately recognized by players and media
worldwide as the Running Man dance. Although identical to the
dance named, created, popularized, and demonstrated by Plaintiffs,
JAKLITSCH LAW GROUP

Epic did not credit Plaintiffs nor seek their consent to use, display,
14350 OLD MARLBORO PiKE
UPPER MARLBORO, MD
reproduce, sell, or create a derivative work based upon Plaintiffs'
20772
(301) 627-8700
Running Man dance or likeness.
4. Since being released in or around September 2017, Fortnite
|has become among the most popular video games ever. Indeed, Fortnite
\made approximately $126 million in profits in February 2018, $223 million
I in March, $296 million in April, and $318 million in May 2018 alone (the
i "biggest month ever for a video game."). Profits alone in 2018 exceeded
$3 billion, according to widely published reports. As a free-to-play game,
Fortnite derives its sales exclusively through these types of in-game
purchases. Epic should not be able to profit from Plaintiffs' fame,
creativity and hard work by its intentional misappropriation of Plaintiffs'
original content or likeness. Plaintiffs seek injunctive relief and
damages, including, but not limited to, Epic's profits attributed to its
improper sale and/or use of the Running Man dance and Plaintiffs'
likeness.
II. TH EPART I ES
5. Plaintiff Nickens now resides in Monmouth Junction, New
Jersey and Plaintiff Brantley resides in Springfield, Massachusetts. At
the time of the creation of Plaintiffs' video, both lived in the State of
Maryland and attended the University of Maryland.
6. Epic is a North Carolina business corporation with its
principal place of business at 620 Crossroads Boulevard , Gary,
JAKLITSCH LAW GROUP North Carolina, 27518. Epic and John and Jane Does 1 through 50
14350 OLD MARLBORQ PIKE
UPPER MARLBORO. MD
20772
and John Does Corporations 1 through 10 are the creators and
(301) G27-8700
developers of the Fortnite video game franchise, which was first
[released in July 2017.
III. SUBJECT MATTER JURISDICTION AND VENUE
7. The Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. § 1331 (federal question), diversity Jurisdiction
I pursuant to 28 U.S.C. §1332, and supplemental jurisdiction pursuant
|to28 U.S.C. § 1367.
8. Venue is proper in this District under 28 U.S.C. §
1391(b)(1), (2) and (c) because Defendants transact substantial
I business in this District and because a substantial part of the events
or omissions giving rise to this claim occurred in this District, including
the creation and publication of the Running Man dance while Plaintiffs
1 were living at The University of Maryland.
IV. FACTUAL BACKGROUND
A. Plaintiffs and the Creation of the Running Man
9. In 2016, Plaintiffs created a dance, which they named the
"Running Man" while listening and dancing to music with their friends
and teammates. The dance is distinctive and immediately
recognizable.
10. Since creating the dance, Plaintiffs incorporated it into
routines in and around the State of Maryland, including during pre and
JAKLiTSCH LAW GROUP
14350 OLD MARLBORO PIKE
half time breaks with members of The University of Maryland
UPPER MARLBORO. MD
20772
basketball team. Plaintiffs also posted videos of themselves and their
(30i> 627-B700
friends, who later imitated the dance and posted it on social media
sites, including performing the dance on YouTube and other social
media platforms, such as Instagram and Facebook.
11. By the end of 2016, the Running Man dance video(s) had
over one million views on YouTube and thousands of people began
posting their own videos showing themselves performing the Running
Man, partly as a result of a "challenge" from Plaintiffs to other college
basketball players posted on social media. The video now has over
100 million views on YouTube, and was a Google top search in 2016.
12. Since its release in 2016, and its rise to fame later that
year, the Running Man dance maintained its popularity.
13. The Running Man has become synonymous with Plaintiffs,
who are credited with creating the dance and video that became
"virai."
B. Fortnite: The Most Popular Game Ever
14. Even prior to releasing Fortnite, which would become
among the most popular and successful video games ever, Epic had
already developed two popular video game franchises: Unreal and
Gears of War. Since releasing the first Gears of War game in 2005,
Epic released several subsequent Gears of War video games, and the
JAKLITSCH LAW GROUP franchise has made over $1 billion in total sales.
J4350 OLD MARLSORO PSKE
UPPER MARLSORO, MD
20772
15. At or around 201 1, following the release of the third Gears
(301) 6V.7-S700
of War installment, Fortnite began from an Epic internal video game

hackathon, or a gathering of Epic developers to brainstorm ideas and
create games in a short period. Although the Fortnite game was not
developed during the hackathon, the idea to merge building games
(i.e., Minecraft) and shooter games (i.e. Gears of War or Call of Duty)
emerged during the Hackathon.
16. On or around July 2017, Epic released the initial version of
Fortnite as a paid early-access video game. However, by September
2017, after PlayerUnknown's Battlegrounds - a game which occupied
the same "battle royale" genre as Fortnite-became a worldwide
success, Epic released Fortnite Battle Royale, a free-to-play battle
royale third person shooting game on the Windows, macOS,
PlayStation 4 and Xbox One platforms. Epic subsequently released
Fortnite on the iOS, Nintendo and Android platforms on April 2,2018,
June 12, 2018. and August 9, 2018, respectively.
17. Similar to PlayerUnknown's Battlegrounds, Fortnite 15
utilizes the battle royale format where up to 100 players, alone, in
pairs, or groups, compete to be the last player or group alive.
18. As a free-to-play video game, Epic allows players to
download and play Fortnite for free. Fortnite is supported by in-game
transactions where players can purchase virtual currency, called

JAKUTSCH LAW GROUP
14350 OLD. MAR LBORO PIKE "Vinderbucks" or "V-Bucks." The players in turn use V-Bucks to
UPPER MARLBORO, MD
20772
purchase customizations for their in-game avatars, including new

(301) 627-8700
characters, pickaxe modifications, glider skins, clothes and "emotes"

(dances or movements). Fortnite also sells "Battle Passes" or
additional levels that allow you to unlock skins, gliders and emotes
unique to that Pass. Fortnite offers four pricing levels for purchasing V-
Bucks:
1) 1,000 V-Bucks for $9.99 ;

2) 2,5000 (+300 Bonus) V-Bucks for $24.99;
3) 6,000 (+1,500 Bonus) V-Bucks for $59.99; or
4) 10,000 (+3,500 Bonus) V-Bucks for $99.99.
19. There are four types of emotes: common emotes,
uncommon emotes, rare emotes, and epic emotes. The rarer the
emote, the more expensive or harder it is to obtain. Uncommon
emotes cost 200 V-Bucks. Rare emotes cost 500 V-Bucks. And Epic
emotes cost 800 V-Bucks.
20. To start, Fortnite provides each player with the Dance
Moves emote, a common emote, for no compensation. Players can
then obtain other emotes by purchasing and playing additional levels
in Battle Passes (950 V-Bucks each) that come with emotes unique to
that Pass, or by purchasing certain emotes directly with V-Bucks. On
some 12 occasions, Fortnite sells Battle Pass emotes directly, without
requiring the player to purchase the Battle Pass.
JAKLITSCH LAW GROUP

14350 OLD MARLBORO PIXE 21. Emotes are incredibly popular and are fundamental to
UPPER MARLBORO. MD
20772
Fortnite's success. Players purchase emotes, alongside clothing and
(301) 627-8700
skins, to personalize their Fortnite experience. Emotes have also

become popular outside Fortnite. Professional athletes in soccer and
other sports have based their celebrations on Fortnite emotes. Young
adults, teenagers, and kids also post videos of themselves on
YouTube and social media performing emotes under various
hashtags, including #fortnitedance or#fortnitevideos.
22. Upon information and belief, Epic creates emotes by
copying and coding dances and movements directly from popular
videos, movies, and television shows without consent. Epic does so by
coding still frames of the source material. For example, upon
information and belief, Epic coded the "Ride the Pony" emote, frame-
by-frame, from the "Gangam Style" dance made famous by the Korean
entertainer, Psy. The Ride the Pony emote and Psy's dance are
identical in every respect. On information and belief, Epic did not
obtain Psy's authorization for copying the dance and including it in
Fortnite.
23. Upon information and belief, Epic has also consistently
sought to exploit African American talent, in particular in Fortnite, by
copying their dances and movements. Epic has copied the dances and
movements of numerous African-American performers, including, for
example, the dance from the 2004 Snoop Dogg music video, "Drop It
JAKUTSCH LAW GROUP Like It's Hot" (named the "Tidy" emote), Alfonso Ribeiro's performance
14350 OLO MARLBORO PIKE
UPPER MARLBQRO. MD
20772 of his famous "Carlton" dance on The Fresh Prince of Bel-Air television
(301) 627-8700
show (named the "Fresh" emote), the dance performed by Will Smith
|on the same television show (named the "Rambunctious" emote), the
|dance in Marion Webb's popular "Band of the Bold" video (named the
Best Mates" emote), Donald Faison's signature dance seen on the
NBC television show Scrubs (named the "Dance Moves" emote), and
the most pertinent here, Plaintiffs' Running Man dance. Upon
information and belief, Epic did not seek consent or authorization to
use any of these movements or dances.
24. Soon after its release, Fortnite became an international
phenomenon. The game eclipsed 10 million players merely two weeks
after its release; 125 million players by July 2018. In November 2018,
Bloomberg announced that Fortnite had 200 million player accounts
across all platforms.
25. Fortnite's popularity has translated into record sales for
Epic. Analysts have estimated that since its release, Fortnite has
generated between $1 billion to $2 billion in revenue through in-game
purchases, such as emotes. In May 2018, Fortnite broke its own
record by generating approximately $318 million in revenue, the
biggest month ever for a video game. In fact, nearly 80 million people
played Fortnite in August 2018. Because of Fortnite's success, Epic's
estimated valuation rose from about $825 million to about $5 billion.
JAKLITSCH LAW GROUP Bloomberg estimates that Epic's valuation could grow to $8.5 billion by
U350 OLD MARLBORO PIKE
UPPER MARLBORO. MD
20772 2018'send.
(301) 627-B700
C. Fortnite's Unauthorized Use of the Running Man

26. On July 12, 2018, Fortnite released its Season 5 Battle
Pass. Players could purchase the Battle Pass, alongside its
accompanying emotes and other customizations, for the regular price
of 950 V-Bucks. As part of the Season 5 Pass, Fortnite offered a new
rare emote that it called "The Running Man Emote." According to
Fortnite, players can obtain the Running Man emote as a reward from
Tier 63 of the Season 5 Battle Pass. Also, on certain occasions,
Fortnite sold the Running Man emote separately for 500 V-Bucks.
27. The Running Man emote is identical to the Running Man
dance, and identical to the dance performed on the video of Plaintiffs'
posted to YouTube. If obtained or purchased, the Fortnite player's
avatar can perform the dance during Fortnite gameplay. The reaction
from many players worldwide was immediate recognition of the emote
as embodying the "Running Man" while others likely believed it was
Epic's original creation.
28. Upon information and belief, Epic intentionally developed
that emote by copying the original video of the Running Man dance
and/or copying an identical version of said video, to intentionally mimic
Plaintiffs performing the Running Man. In fact, players have asked for
it by name in various online forums relating to Fortnite.
JAKLITSCH LAW GROUP

14350 OLD MARLBORO PIKE 29. Epic did not seek to obtain Plaintiffs' authorization or
UPPER MARLBORQ. MD
20772
consent for its use of their likeness and the Running Man dance for the
t301) 627-8700
emote.
30. Moreover, Plaintiffs did not give Epic express or implied
consent for its use of their likeness and the Running Man dance for the
emote. Epic also did not compensate Plaintiffs' for its use of their
likeness and the Running Man dance for its emote.
31. Upon information and belief, Epic added the emote to
intentionally exploit for its own benefit the popularity of Plaintiffs and
the Running Man dance without providing Plaintiffs any form of
compensation.
32. Epic profited from its improper misappropriation of the
Running Man dance by, inter a//a;1) selling the infringing Running Man
emote directly to players; 2) selling the Season 5 Battle Pass that
contains the emote; 3) advertising the emote to attract additional
players, including those persons familiar with the Running Man dance
to play Fortnite and make in-game purchases; 4) retaining and
attracting players by incentivizing those players to continue playing
Fortnite; 5) impliediy representing that Plaintiffs endorsed Epic's use of
their likeness; 6) creating an erroneous conclusion that its emote was
in fact associated with Running Man; 7) creating the false impression
that Plaintiffs endorsed Fortnite; and 8) inducing and/or contributing to
Fortnite players' avatars performing the Running Man dance.
JAKLITSCH LAW GROUP

543SO OLE) MARLBORO PiKE 33. Upon information and belief, Epic uses the Running Man,
UPPER MARLBORO. MD
20772
and other dances, to create the false impression that Epic started
(301) 627-8700
these dances and crazes or that the artist who created them is
endorsing the game. Indeed, players have posted thousands of videos
themselves performing the Running Man Emote with the hashtag
#fortnitedance, without referencing the Running Man or crediting
Plaintiffs as the dance's creators, authors and owners. Accordingly,
upon information and belief, Epic actively and knowingly directs,
causes, induces, and encourages others, including, but not limited to,
its players, designers, suppliers, distributors, resellers, software
developers, and repair providers, to copy, distribute and sell the
Running Man dance and to misappropriate Plaintiffs' names and
likenesses.
34. Plaintiffs have stated in interviews that they do not consent
or approve Epic's use of the Running Man for the emote. Other
prominent artists, including Chancelor Bennett, known as Chance the
Rapper, have also publicly disapproved of Epic's practices, and
advocated for Epic sharing profits with the artists that created these
dances.
35. Accordingly, Epic made a financial fortune from unlawfully
and unfairly stealing Plaintiffs' and other artists' creative expression
and likeness without crediting or compensating these artists. Plaintiffs
thus bring this suit to prevent Fortnite from further using the Running
JAKL1TSCH LAW GROUP

Man and to recover the profits rightfully owed to them.
UPPER MARLBORO. MD
20772
(301) 627-9700
C^)UN_T ONE
(Infringement of Copyright)
36. Plaintiffs hereby repeat and re-allege the allegations set
forth in paragraphs 1 through 35, above, as though fully set forth
herein.
37. On or around April of 2016 Plaintiffs' Running Man video
was published to YouTube where it can be accessed by millions of
people. The Running Man music video shows Plaintiffs performing the
Running Man dance with their friends and teammates.
38. Plaintiffs are the undisputed authors and creators of the
wildly popular and immediately recognizable Running Man dance.
Plaintiffs' videos are the original depictions of the Running Man dance.
39. Plaintiffs are in the process of registering the Running Man
dance with the United States Copyright Office. On January 4, 2019,
Plaintiffs submitted an application for copyright registration of the
Running Man dance.
40. Defendants have infringed and continue to infringe
Plaintiffs' copyrights in the Running Man by selling the Running Man
dance emote as an in-game purchase, under the name Running Man,
that, if purchased, a player can use to make his or her avatar perform
JAKLSTSCH LAW GROUP

14350 OLD MARL80RO PIKE during Fortnite gameplay; substantially copying the Running Man and
UPPER MARLBORO. MD
20772
the likeness of Plaintiffs in digital form to the Fortnite game; advertising
{SOD ezj'afoo
the Running Man in its promotional materials; and creating the

Running Man emote as a derivative work of the Running Man dance.
41. Defendants did not seek to obtain Plaintiffs' permission for
its use of the Running Man for the Running Man emote. Nor have
Defendants compensated or credited Plaintiffs for their use of the
Running Man.
42. Moreover, Defendants actively and knowingly directed,
caused, induced and encouraged others, including, but not limited to,
its players, designers, suppliers, distributors, resellers, software
developers, and repair providers, to misappropriate Plaintiffs' likeness
and to copy, distribute and profit from the Running Man dance.
43. Defendants' acts of infringement have been willful,
intention, and purposeful, in disregard of and with indifference to
Plaintiffs' rights.
44. As a result of Defendants' conduct, Plaintiffs have been
damaged by being precluded from receiving their rightful share of the
profits earned by Epic for its improper and unlicensed use of Plaintiffs'
exclusive copyrights in the Running Man dance in Fortnite, and for
Epic's improper and unlicensed use of Plaintiffs' image and Plaintiffs'
video where the Runnina Man dance was first demonstrated and then
misappropriated by Defendants.
JAKUTSCH LAW GROUP
UPPER MARLBORO, MD
20772
45. Plaintiffs are entitled to permanent injunctive relief
001) 627-8700
preventing Defendants, and their officers, agents, and employees, and
all related persons from further using the Running Man and engaging
in other acts in violation of the Copyright Act, 1 7 U.S.C. Section 101
et. seq..
46. As a direct and proximate result of Defendants'
infringement of Plaintiffs' copyrights and exclusive rights of a copyright
owner as enumerated above, Plaintiffs are also entitled to recover
damages, including statutory damages and attorneys' fees, and any
profits obtained by Defendants as a result of the infringements alleged
above in an amount according to proof to be determined at the time of
trial.
47. In doing the acts herein alleged, Defendants acted
fraudulently, willfully, and with malice, and Plaintiffs are therefore
entitled to punitive damages.
COUNT TWO
(Contributory Infringement of Copyright)
herein.
49. Plaintiffs are in the process of registering the Running Man

JAKUTSCH LAW GROUP
UPPER MARLBORO, MD
dance with the United States Copyright Office. On or about January 7,
20772
(301) 627-S700
2019 Plaintiffs submitted an application for copyright registration of the
Running Man dance.

50. Defendants have infringed and continue to infringe
Plaintiffs' copyrights in the Running Man by selling the Running Man
dance emote as an in-game purchase, under the name Running Man,
that, if purchased, a player can use to make his or her avatar perform
during Fortnite gameplay; substantially copying the Running Man and
Plaintiffs' likeness in digital form to the Fortnite game; advertising the
Running Man in its promotional materials; and creating the Running
Man emote as a derivative work of the Running Man dance.
51. By providing the Running Man emote necessary for its
players to commit direct copyright infringement, Defendants have and
continue to materially contribute to the unauthorized reproductions and
distributions by its players of the Running Man and of the likeness of
Plaintiffs.
52. Defendants did not seek to obtain Plaintiffs' permission for
its use of the Running Man for the Running Man emote. Nor have
Defendants compensated or credited Plaintiffs for their use of the
Running Man.
53. Moreover, Defendants actively and knowingly directed,
caused, induced, and encouraged others, including but not limited to
players, designers, suppliers, distributors, resellers, software

JAKLITSCH LAW GROUP
14350 OLD MARLBORO PIKE developers, and repair providers, to misappropriate Plaintiffs likeness
UPPER MARLBORO, MD
20772
and the Running Man dance.
(301) 627-8700
54. Defendants' acts of infringement have been willful,
intention, and purposeful, in disregard of and with indifference to
Plaintiffs' rights.
55. Defendants' willful and continued unauthorized use of the
Running Man for commercial gain has caused and will continue to
cause confusion and mistake by leading the public to erroneously
associate the Running Man emote offered by Epic with the Running
Man dance in violation of 15 U.S.C. §§1051 et. seq.
56. As a result of Defendants' conduct, Plaintiffs have been
profits earned by Epic for its improper and unlicensed use of Plaintiffs'
exclusive copyrights and the improper use of Plaintiffs' likeness in the
Running Man dance in Fortnite.
57. Defendants' conduct is causing and, unless enjoined and
restrained by this Court, will continue to cause Plaintiffs great and
irreparable injury that cannot be compensated or measured in money.
Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.C.
§502, Plaintiffs are entitled to injunctive relief, prohibiting further
contributory infringements of Plaintiffs' copyrights.
58. As a direct and proximate result of Defendants'

JAKUTSCH LAW GROUP
14350 OLO MARLBORO P!KE
UPPER MARLSORO. MD infringement of Plaintiffs' copyrights and exclusive rights under

20772
(30i) 627-8700 copyright, Plaintiffs are also entitled to recover damages, including
attorneys' fees, and any profits obtained by Defendants and as a result
of the infringements alleged above in an amount according to proof to
be determined at the time of trial. 15 U.S.C Section 1051 et. seq.
59. In doing the acts herein alleged, Defendants acted
fraudulently, willfully, and with malice, and Plaintiffs are therefore
entitled to punitive damages according to proof at the time of trial.
COUNT THREE
(Violation of Publicity Rights)
herein.
61. Through the use of Running Man dance as an in-game
dance emote that can be purchased, Defendants misappropriated
Plaintiffs' identities. The Running Man emote depicts Plaintiffs
performing the Running Man dance. Upon information and belief,
Defendants created the Running Man emote by capturing and digitally
copying Plaintiffs performing the Running Man dance. Defendants
then utilized the digital copy to create code that, if purchased, allows
the player's avatars to perform the Running Man dance identical to
Plaintiffs' version.
JAKLiTSCH LAW GROUP

14350 OLD MARLBORO PIKE 62. Defendants did not seek or obtain Plaintiffs' authorization or
UPPER MARLBORO. MD
20772
consent for its use of their likeness for the Running Man emote, and
(301) 627-8700
otherwise have willfully and intentionally used Plaintiff's rights of

Ipublicity. Nor have Defendants compensated or credited Plaintiffs for
|their use of the Running Man.
63. Defendants used Plaintiffs' likeness to generate significant
[wealth by: 1) selling the infringing Running Man emote directly to
I players; 2) selling the Season 5 Battle Pass that contains the emote;
3) advertising the emote to attract additional players, including those
persons familiar with the Running Man to play Fortnite and make in-
game purchases; 4) staying relevant to its current players to
incentivize those players to continue playing Fortnite; 5) impliedly
representing that Plaintiffs consented to Epic's use of their likeness; 6)
erroneously causing an association of its emote with Running Man; 7)
creating the false impression that Plaintiffs endorsed Fortnite; and 8)
inducing and/or contributing to Fortnite players' avatars performing the
Running Man dance.
64. Plaintiffs were damaged by Defendant's conduct as they
were prevented from realizing the profits of licensing their likeness to
Defendant for commercial gain.
65. Defendants' conduct caused and will continue to cause
confusion and mistake by leading the public to erroneously believe
that Plaintiffs consented to the use of their likeness in the Fortnite

JAKLITSCH LAW GROUP
game.
UPPER MARLBORO, MD
20772
(301) 627-8700
preventing Defendants, and its officers, agents, and employees, and
all related persons from further using their likeness.
67. Plaintiffs are also entitled to recover damages, including
any profits obtained by Defendant as a result of the infringements
alleged above, in an amount according to proof to be determined at
the time of trial.
COUNT FOUR
(Unfair Competition)
68. Plaintiffs hereby repeats and re-alleges the allegations set
herein.
69. By exploiting and misappropriating Plaintiffs' copyright and
likeness through the improper use of the Running Man dance,
Defendant has engaged in business acts or practices that constitute
unfair competition in violation of the Lanham Act, 15 U.S.C. Section
1051 et. seq..
70. Defendants' willful and continued unauthorized use of the
Running Man for commercial gain has caused and will continue to
cause confusion and mistake by leading the public to erroneously
JAKL1TSCH LAW GROUP

14350 OLD MARLBORO PIKE associate the Running Man emote offered by Epic with the Running
UPPER MARLBOFiO. MD
20772
Man dance, as performed by Plaintiffs in their on-line video, in violation
(30f) 627-8700
of The Lanham Act, 1 5 U.S.C §§1051 et. seq.

71. As a result of Defendant's violations, Defendant has
unjustly enriched itself by 1) selling the infringing Running Man emote
directly to players; 2) selling the Season 5 Battle Pass that contains
the emote; 3) advertising the emote to attract additional players,
including those persons familiar with the Running Man to play Fortnite
and make in-game purchases; 4) staying relevant to its current players
to incentivize those players to continue playing Fortnite; 5) impliedly
representing that Plaintiffs consented to Epic's use of their likeness; 6)
erroneously causing an association of its emote with Running Man; 7)
creating the false impression that Plaintiffs endorsed Fortnite; and 8)
inducing and/or contributing to Fortnite players' avatars performing the
Running Man dance.
72. As a result of Defendant's conduct, Plaintiffs have been
profits from selling or licensing their exclusive copyright in the Running
Man dance and/or their image.
73. Moreover, Plaintiffs were damaged by Defendant's conduct
as they were prevented from realizing the profits of licensing their
likeness to Defendant for commercial gain.

JAKUTSCH LAW GROUP
14350 OLD MARL80RO PIKE preventing Defendant, and its officers, agents, and employees, and all
UPPER MARLBORO, MD
20772
related persons from further using their likeness.
(301) 627-8700
75. Plaintiffs are also entitled to recover damages, including
any profits obtained by Defendant as a result of the infringements
alleged above, in an amount according to proof to be determined at
the time of trial.
PRAYER FOR RELIEF
WHERERFORE, Plaintiffs respectfully request relief from this
Court as follows:
1. An award of damages over and above $5,000,000 for
Defendant's violations of 15 U.S.C. S 1051 et. seq.\
Defendant's violations of Plaintiffs' rights of publicity;
3. An award of exemplary damages over and above
$5,000,000 for Defendant's violations of Plaintiffs' rights of publicity;
Defendants' infringement of Plaintiffs' copyright, and other damages;
5. An award for attorney's fees and costs of suit;
6. An Order enjoining and restraining Defendants from using,
selling, or displaying Plaintiffs' copyright in its Fortnite game;
JAKUTSCH LAW GROUP 7. And for such other and further relief as this Court may
14350 OLD MARLBORQ PiKE
UPPER MARLBORO. MO
20772 deem just and proper.

(301) 6 27-87 00
THE JAKLITSCH LAW GROUP
Richard L.Jaklitsch, (6361

-USSO-GldMarlboroPike
Upper Marlboro, MD 20772
(301)627-8700
(301) 627-6070 (fax)
rick@jaktitschlawgroup.com
Attorney for Plaintiffs /jac
DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury on all issues.
^
Richard L. Jaklitsch
JAKUTSCH LAW GROUP

UPPER MARLBORO. MD
20772
(301) 627-8700

Brantley & Nickens v. Epic Games

Uploaded by

Copyright:

Brantley & Nickens v. Epic Games

Uploaded by

Document Information

Copyright

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Brantley & Nickens v. Epic Games

Uploaded by

Copyright:

What is the nature of the legal action?

What is the nature of the legal action?

Who are the plaintiffs and defendant in the case?

Who are the plaintiffs and defendant in the case?

Case 8:19-cv-00594-PWG Document 1 Filed 02/25/19 Page 1 of 23

THE UNITED STATES DISTRICT COURT

and Case No.

EPIC GAMES, Inc., a North Carolina

JOHN AND JANE DOES 1 THROUGH 50

and through their undersigned counsel, assert the following claims

through 50 and John Doe Corporations 1 through 10, (collectively referred

UPPER MARLGORO. MD to as "Defendants"), and allege as follows:

1. Through its unauthorized misappropriation of Plaintiffs'

Battle Royale ("Fortnite"), the Defendants have unfairly profited from

exploiting Plaintiffs' protected creative expression and likeness.

2. Plaintiffs created, named and/or popularized the Running

Man dance which exploded in popularity following its creation in early

the internet in April of 2016, and after Plaintiffs' appearance on "The

Ellen DeGeneres Show," that demonstrated the dance. Plaintiffs'

video has over 2 million views to date on Instagram alone, as well as

additional millions of views on YouTube and Facebook. Plaintiffs'

3. Defendant capitalized on the Running Man's dance

popularity, particularly with its younger fans, by selling the dance as

an in-game purchase in Fortnite, under the name "Running Man,"

This dance was immediately recognized by players and media

worldwide as the Running Man dance. Although identical to the

dance named, created, popularized, and demonstrated by Plaintiffs,

JAKLITSCH LAW GROUP

4. Since being released in or around September 2017, Fortnite

\made approximately $126 million in profits in February 2018, $223 million

$3 billion, according to widely published reports. As a free-to-play game,

Fortnite derives its sales exclusively through these types of in-game

purchases. Epic should not be able to profit from Plaintiffs' fame,

creativity and hard work by its intentional misappropriation of Plaintiffs'

original content or likeness. Plaintiffs seek injunctive relief and

Jersey and Plaintiff Brantley resides in Springfield, Massachusetts. At

Maryland and attended the University of Maryland.

6. Epic is a North Carolina business corporation with its

principal place of business at 620 Crossroads Boulevard , Gary,

[released in July 2017.

III. SUBJECT MATTER JURISDICTION AND VENUE

7. The Court has subject matter jurisdiction over this action

pursuant to 28 U.S.C. § 1331 (federal question), diversity Jurisdiction

I pursuant to 28 U.S.C. §1332, and supplemental jurisdiction pursuant

|to28 U.S.C. § 1367.

8. Venue is proper in this District under 28 U.S.C. §

1391(b)(1), (2) and (c) because Defendants transact substantial

I business in this District and because a substantial part of the events

or omissions giving rise to this claim occurred in this District, including

1 were living at The University of Maryland.

IV. FACTUAL BACKGROUND

A. Plaintiffs and the Creation of the Running Man

9. In 2016, Plaintiffs created a dance, which they named the

and teammates. The dance is distinctive and immediately

10. Since creating the dance, Plaintiffs incorporated it into

sites, including performing the dance on YouTube and other social

media platforms, such as Instagram and Facebook.

over one million views on YouTube and thousands of people began

posting their own videos showing themselves performing the Running

Man, partly as a result of a "challenge" from Plaintiffs to other college

year, the Running Man dance maintained its popularity.

13. The Running Man has become synonymous with Plaintiffs,

B. Fortnite: The Most Popular Game Ever

14. Even prior to releasing Fortnite, which would become