According to Wikipedia, an implicit bias or implicit stereotype is “the unconscious attribution of particular qualities to a member of a certain social group.” Legislation is often written to allow for a substantial degree of judicial discretion — and in these areas of judicial discretion an outside observer might expect to find biases. We’re only human; none of us can really claim to be a clean slate.
Copyright law is especially nuanced, requiring judges to manage a number of intangible standards and tests laid out in an ill-defined statute and by precedential decisions. I’ve recently written about judges making judgment calls — for example, deciding that all unicorns look alike. A recent case, Brantley v. Epic Games was decided in the District of Maryland on May 29, and the decision repeatedly referenced another case against the same defendant, Pellegrino v. Epic Games, decided in the Eastern District of Pennsylvania on March 31.
To understand the cases, one must take a crash course in gaming. Fortnite is free to play online and in real-time with other users, but in order to do much, each user must purchase add-ons. One type of add-on is called an “emote.” Emotes are basically short dances like the ones seen in the NFL after touchdowns. Plaintiffs in both cases claimed to have signature dance moves which Fortnite transformed into emotes, and the plaintiffs alleged several common law claims against Epic.
Clearly, plaintiffs in both cases didn’t file for copyright registration, perhaps because they were not confident whether their works merited registration or were original to them. (In particular, the college basketball players in Brantley appeared to have admitted in a televised interview on The Ellen Show that their Running Man Challenge was inspired by a video of two high school kids.)
But both district courts found that the works that allegedly were infringed were dances, and therefore considered choreography — which is covered by the Copyright Act. So, the majority of the common law claims in both cases were deemed preempted by the Copyright Act, and dismissed.
However, in Pellegrino, a claim for false endorsement survived — in Brantley, all claims were dismissed. “False endorsement” is a common law cause of action similar to trademark infringement — so, apparently, that signature move of this “epic” baritone sax player might someday be deemed worthy of his exclusive rights.
To me, that seems like a stretch, but courts generally want to make determinations on the merits, and will assume all allegations set forth in the complaint are true for the purpose of deciding a motion to dismiss.
So, I’m curious why two Black college basketball players had a different outcome compared to a white plaintiff suing with very similar claims. All of the claims in Brantley were dismissed, including the one for right of publicity/privacy. And rather than assuming all of plaintiffs’ allegations were true for the purpose of deciding a motion to dismiss, the court wrote, “At best Plaintiffs add the conclusory allegation that the Running Man dance is their ‘likeness.’ But even granting inferences in favor of Plaintiffs, the Court is not obligated to adopt such legal conclusions devoid of further factual enhancement.”
Maybe the pleadings were inadequately drafted, but it seems to me that a claim that Epic’s emote looked like the plaintiffs sufficiently expressed an unauthorized use of their name or likeness to survive dismissal of a claim for violating their right of publicity; it seems to me that such claim “had legs” (pun unintended). Rather than dismiss, the judge could have allowed plaintiffs to amend the complaint to provide more than “conclusory” allegations about how the emotes used plaintiffs’ likenesses. Writing off such an allegation as “conclusory” seems like a way to not just dismiss, but to be dismissive. It is true that the cases were heard in two different districts, regarding two different types of dances — but we know that outcomes are a powerful metric that add to the big picture. Outcomes themselves tell a story. And this story seems odd to me.
