Fortnite Lawsuit a Battle Over Jack-o’-Lantern Figures

Advertising Law

Taking the offensive, Epic Games filed suit against an Omaha news anchor seeking a declaration that its wildly popular video game Fortnite does not infringe his copyright or trademark rights.

To celebrate Halloween, Fortnite released a special Halloween-themed emote (movements selected by players to express their emotions in the game or taunt other players) in the fall of 2019. The “Pump It Up” emote—made available for a single day as part of the “Fortnitemares” event—showed a player’s avatar performing a brief dance to a Halloween-themed song developed by Epic Games.

The head of whatever avatar the player has selected is transformed into a jack-o’-lantern face designed by the game company that features moving green flames pouring from the eyes, nose and mouth; a broad, grinning mouth; a long, prominent stem that curves; and dark striations delineating the segments of the pumpkin that give it a yellow-and-orange design.

Matthew Geiler posted a video of himself that went viral in which he dances in a black unitard with a jack-o’-lantern on his head, dancing to a song from Ghostbusters in front of a static, generic graveyard image.

When Geiler sent Epic a cease-and-desist letter claiming that the Pump It Up emote infringed the copyright to his character in the “Dancing Pumpkin Man” video, the company countered with a New York federal court complaint.

No infringement occurred, Epic told the court, as not only did Geiler not own a protectable character, but the jack-o’-lantern-headed figures in question were not substantially similar.

Geiler’s video “is simply the idea of an ordinary jack-o’-lantern head on a nondescript, plain black unitard body,” according to the complaint. “This does not rise to the level of specificity needed, as a matter of law, to create a copyrightable character.”

As for the similarity between the individual in Geiler’s video and the Fortnite emote, Epic said the two are completely different.

“In contrast to Fortnite’s Pump It Up emote, the defendant’s alleged character’s jack-o’-lantern face has a narrower mouth and a smaller aperture to the eyes and nose, there are no moving green flames shining through the holes, [and] its jack-o’-lantern head is smaller than Fortnite’s Pump It Up emote and is a uniform orange color, as opposed to a striated, yellow-and-orange-toned design,” Epic alleged. “The stem on defendant’s jack-o’-lantern is smaller than the stem in the Pump It Up emote.”

The bodies and costumes of the figures are also not substantially similar, Epic argued. “The body of defendant’s alleged ‘character’ is an ordinary man in a plain black unitard. Fortnite has over 200 avatars (including female avatars and avatars of other species) whose heads can be briefly replaced by the Pump It Up emote—none of these avatars’ bodies wear a plain black unitard.”

As a final point, Epic noted that Geiler licensed the choreography in his video to the company in August for $10,000.

Epic—which also detailed a long history of the idea of a figure with a jack-o’-lantern head, from a 1904 children’s novel featuring the character Jack Pumpkinhead to various comic book series characters in recent years—requested a declaration that its Pump It Up emote does not infringe Geiler’s trademark, copyright or other rights.

To read the complaint in Epic Games, Inc. v. Sick Picnic Media, LLC, click here.

Why it matters: Fortnite’s emotes have a history of courtroom appearances, with Epic facing infringement suits from plaintiffs including Alfonso Ribeiro (who accused the game of ripping off his signature move “The Carlton” from The Fresh Prince of Bel-Air); “Backpack Kid,” who made flossing go viral after appearing on Saturday Night Live with Katy Perry; and rapper 2 Milly, who claimed that his “Milly Rock” dance was nabbed for the game’s “Swipe It” emote. This time, the video game company took matters into its own hands, filing suit before Geiler did.



pursuant to New York DR 2-101(f)

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