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Epic accused of copying ‘numerous African-American performers’ for Fortnite emotes

Jared Nickens and Jaylen Brantley – the duo known best for popularising the "Running Man" challenge – has lodged a legal complaint against Epic Games, accusing the developer of exploiting African American talent and profiting from the plaintiffs’ creative expression via the dance emote, Running Man.

"Epic has copied the dances and movements of numerous African-American performers […] Epic did not seek consent or authorization to use any of these movements or dances," states the complaint.

For several months now, the artists behind some of Fortnite’s most iconic moves have been calling on developer Epic to compensate them.

Fresh Prince of Bel-Air actor Alfonso Ribeiro and Rapper 2 Milly recently filed lawsuits against Epic Games for replicating and selling their dance moves in Fortnite. 2 Milly was only made aware of the dance when fans contacted him over social media. He said Epic "took his craft and sold it as their own", and while he’s "not trying to ruin the game for anyone", he wants the "Swipe It" dance removed and fair compensation.

David Hecht of Pierce Bainbridge Beck Price & Hecht LLP, the law firm representing 2 Milly and Ribeiro, said: "It is widely recognized that Mr. Ribeiro’s likeness and intellectual property have been misappropriated by Epic Games in the most popular video game currently in the world, Fortnite.

"Epic has earned record profits off of downloadable content in the game, including emotes like ‘Fresh’," the statement added. "Yet Epic has failed to compensate or even ask permission from Mr Ribeiro for the use of his likeness and iconic intellectual property.

"Epic uses the Running Man, and other dances, to create the false impression that Epic started these dances and crazes or that the artist who created them is endorsing the game."

"The Plaintiff’s lawsuit is fundamentally at odds with free speech principles as it attempts to impose liability, and thereby chill creative expression, by claiming rights that do not exist under the law," wrote Epic’s lawyer, disputing the claims recently. "No one can own a dance step. Copyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy."

There’s no precedent case law a copyrighting choreography, and patents for individual dance moves cannot be made to the US Copyright Office due to creative choreographic expression and as such, Ribeiro was unsuccessful in his recent efforts to copyright the dance. Despite this, Nickens and Brantley have proceeded with their own lawsuit at Maryland District Court, alleging Epic of infringement of copyright, contributory infringement of copyright, violation of publicity rights, and unfair competition (thanks, GI.biz).

The duo seeks $20 million damages, plus legal fees. Interestingly, their papers do not reference New Jersey students Kevin Vincent and Jeremiah Hall who are purported by some to have originally created the dance move. 

About Vikki Blake

It took 15 years of civil service monotony for Vikki to crack and switch to writing about games. She has since become an experienced reporter and critic working with a number of specialist and mainstream outlets in both the UK and beyond.

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