Epic mainly wins lawsuit against Fortnite saxophone, but judge lets claim go ahead


Epic Games especially prevailed in a lawsuit on its “Phone It In” Fortnite emote, although saxophonist Leo Pellegrino may continue with a claim of false approval. A Pennsylvania judge ruled on the case earlier this week, offering a rare legal exploration into whether you can own a signature dance move – and the results look good for Epic.

Pellegrino sued Epic last year for allegedly hijacking its resemblance to the Fortnite Dance. He argued that the “Phone It In” dance was inextricably linked to his musical performances, and Epic copied it to take advantage of his fame. District court judge John Padova was not convinced. He dismissed seven of Pellegrino’s eight claims and denied a request for modification and resubmission, finding that their reasoning was fatally flawed.

Padova says that Epic has sufficiently “transformed” Pellegrino’s resemblance to emote, so it is protected by the First Amendment. The dance could be recognizable. But this is not linked to other aspects of Pellegrino’s identity, which means that the movement “is mainly Epic’s own expression rather than Pellegrino’s resemblance”. He cites the fact that Fortnite the avatars do not resemble the saxophonist and do not share the biographical details with him: he is a musician who performs the movement during the shows, and Fortnite the characters are fighters in a battle royale tournament.

Pellegrino also claimed a trademark on dance, but those claims also did not stand up because Padova concluded that they were overtaken by copyright law. Essentially, Padova says that if Pellegrino’s dance is protected by intellectual property law, it should be a matter of copyright – which explicitly covers creative choreographed dance sequences. He therefore cannot claim trademark protection (which can last indefinitely, while copyright expires) as an end to circumventing copyright law.

And as we wrote last year, this was probably Pellegrino’s exact strategy. Several earlier Fortnite prosecutions have accused Epic of copyright infringement. The short dances in question were not, however, clearly protected by copyright. They fell into cloudy ground between simple unprotected dance steps and protected choreographed routines. Then, a Supreme Court decision raised the bar to prosecute, demanding a response from the US Copyright Office first. This means that several cases have been temporarily dismissed, and subsequent complaints – such as that of Pellegrino – have often focused on the epic theft of similarities rather than on movements protected by copyright.

This case is bad news for this gambit. He determines that a dance is not enough to establish a resemblance and closes the door to the basic claims of brands, leaving the dancers more dependent on an increasingly tenuous copyright strategy. Fortnite trial lawyers said they had obtained copyright for certain dances, but at least one highly publicized dance has been dismissed for the most part by the Copyright Office.

Padova fact keep the complaint open for false approval. But legal expert and blogger Eric Goldman, who systematically covers the Fortnite costumes, did not find his argument very convincing. The court did not say that Pellegrino would prevail, but simply that his request was clearly not excluded by established legal doctrine. So while this case does not prove that the copying of dances is legal, and certainly does not establish that it is ethical, it narrows the path to victory for emote trials.


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