Fortnite developer Epic Games is getting sued over a saxophone dance move. The lawsuit is the latest in a long line filed against Epic Games, whose wildly popular game is quickly becoming one of the most litigious in the business thanks to its use of dance moves and emotes. Last year, Alfonso Ribeiro who played Carlton in The Fresh Prince of Bel-Air, filed a lawsuit against Fortnite claiming the game’s “Fresh” emote used and profited from his iconic “Carlton dance” without his permission.
Ribeiro’s lawsuit was by no means the first or last lawsuit levelled at Epic Games and Fortnite. Prior to the “Carlton dance” debacle, rapper 2 Milly sued Epic Games for using his “Milly Rock dance” in their “Swipe It” emote in November last year. Shortly after Ribeiro sued, the mother of Russell Horning - aka viral sensation Backpack Kid - filed a lawsuit against Epic for incorporating his “Floss dance” into another of its in-game emotes. More recently the mother of another online sensation, Orange Shirt Kid, sued Epic Games for incorporating her son’s dance “The Random” into Fortnite’s “Orange Justice” emote without permission.
Now Eurogamer is reporting that Epic Games and Fortnite are the subject of yet another lawsuit, this one filed by saxophonist Leo Pellegrino of the band Too Many Zooz who is claiming the game wrongfully incorporated his trademark dance moves into its “Phone It In” emote. Interestingly, while the previous lawsuits centered around copyright claims, Pellegrino’s claim focuses on misappropriation of his identity. His lawsuit accuses Epic Games of “outrageous and inexcusable conduct” by replicating Pellegrino’s likeness without permission and states that the company is unfairly profiting from his “strenuous work and hard-earned fame.”
A spokesperson from Pierce Bainbridge Beck Price & Hecht LLP, the law firm representing Pellegrino, stated:
"There is no other saxophonist who moves like Leo P. and no doubt that Epic sought to exploit his likeness and signature movement for profit in Fortnite. While Fortnite has very recently started to work with talent like Marshmello and Weezer, implicitly acknowledging the importance of licensing intellectual property it wishes to use, it has continued to ignore the rights of a bevy of performers it blatantly copied, including Leo P."
The law firm does have a point as it’s kind of hypocritical of Epic Games to collaborate properly with artists like Weezer and Marshmello - the latter of which recently hosted an in-game concert in Fortnite - while seemingly ripping off the content of other, perhaps lesser-known people. Interestingly, Pierce Bainbridge is the same law firm that represented Alfonso Ribeiro, 2 Milly, Backpack Kid and Orange Shirt Kid but a recent change in US copyright law saw their lawsuits dropped.
It seems the law firm has now changed tactics with Pellegrino’s lawsuit by switching the focus from a copyright claim to one of misappropriation of likeness. Whether this particular lawsuit will succeed where others before it have failed remains to be seen.