The Epic emote debate: all of the news about Fortnite’s ongoing dance lawsuits

This week, a panel of US appeals court judges has renewed the legal battle over Fortnite dance moves by reversing the dismissal of a lawsuit filed last year by professional choreographer Kyle Hanagami against Epic Games. Billboard pointed out the opinion filed on November 1st (PDF), where US 9th Circuit Court of Appeals Judge Richard Paez wrote that even if individual elements of a dance can’t be copyrighted, the arrangement can.

The lower court said choreographic works are made up of poses that aren’t protectable alone.

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

Pellegrino sued Epic last year for allegedly misappropriating his likeness with the Fortnite dance. He argued that the “Phone It In” dance was inextricably linked to his musical performances, and Epic was copying it to profit off his fame. District court judge John Padova wasn’t convinced. He dismissed seven of Pellegrino’s eight claims and denied a request to amend and resubmit them, concluding that their reasoning is fatally flawed.

Fortnite creator Epic Games is trying to avoid yet another lawsuit over dance emotes. The company preemptively filed a complaint against Matt Geiler, also known as the “Dancing Pumpkin Man” from a 2006 viral video. Geiler reportedly told Epic to stop offering a Halloween-themed emote called “Pump It Up,” which copies his dance and briefly gives avatars a jack-o’-lantern for a head. Now, Epic is asking courts to declare that it didn’t infringe Geiler’s trademark or copyright.

Epic has faced several lawsuits over dance emotes, including one from Fresh Prince of Bel-Air star Alfonso Ribeiro. But this case is a little different. Where most suits have hinged purely on dance moves, Geiler apparently says the combined dance and pumpkin head constitute a recognizable character. Also, unlike the other cases, Epic previously struck a licensing deal with Geiler — something he’s mentioned in a Facebook post comment and a Mel Magazine profile. The complaint doesn’t explain why Geiler sent a cease-and-desist letter after reaching this deal, but it indicates that he discussed suing Epic over the use of his likeness.

Fortnite creator Epic Games is facing a lawsuit from New York City-based saxophonist Leo Pellegrino, who claims the developer has used his likeness without permission when designing a saxophone dance in the game. The lawsuit was filed today in federal court for the eastern district of Pennsylvania.

The emote, called “Phone It In,” lets players whip out the brass instrument and play a quick tune while dancing. Pellegrino, best known for his Brass House band Too Many Zooz, says his “trademark moves have become inseparable from his persona and his life story” and that Epic had not previously asked for permission to use his likeness or “his signature moves.”

Five lawsuits against Fortnite developer Epic Games are on hold as the law firm behind them waits for the US Copyright Office to consider applications. All five suits — filed by Fresh Prince of Bel-Air star Alfonso Ribeiro, Russell “Backpack Kid” Horning, the unnamed Fortnite fan known as “Orange Shirt Kid,” and rappers Terrence “2 Milly” Ferguson and James “BlocBoyJB” Baker — all claim Epic unlawfully used dances they invented as Fortnite emotes. But they’re temporarily dismissing their complaints, apparently because of a change in how courts process copyright lawsuits.

In a statement earlier this week, law firm Pierce Bainbridge said it was withdrawing because of a recent Supreme Court decision that requires people to get a response from the US Copyright Office before suing over an application they’ve submitted. The earlier suits “were filed under the previous standard,” it says, and “to best conform with the law as it stands in light of the Supreme Court decision, our clients will dismiss their current lawsuits and refile them.” Before the Supreme Court decision, the firm also dismissed a similar suit by Ribeiro against Take-Two Interactive.

Fortnite is one of the most popular and profitable video games in history, and its publisher Epic is copying creative work from children and independent artists without paying them. So it’s not surprising that seven people have sued the company, claiming Epic broke copyright law by turning their dance moves into Fortnite emotes. These suits are exploring interesting new legal territory. But if they succeed, it could be bad for dance, bad for copyright, and bad for the culture these lawsuits are ostensibly trying to protect.

For anybody who’s not familiar with Fortnite, emotes are short avatar animations that players can buy or earn. Like other cosmetic in-game items, they’re often fun because they’re familiar. You can get generic acrobatic moves or fist pumps, but also emotes based on John Travolta’s Saturday Night Fever dance or the “Salt Bae” meme. And in an increasing number of lawsuits, people who inspired emotes — like Fresh Prince of Bel-Air star Alfonso Ribeiro and rapper 2 Milly — are claiming that Epic violated their copyrights.

Fortnite creator Epic Games is facing yet another lawsuit over copying dance emotes without permission. Two former University of Maryland basketball players have sued the company for its “Running Man” Fortnite emote, which allegedly copies a dance they popularized in 2016. Their complaint accuses Epic of copyright infringement and violating the players’ publicity rights — arguing that the publisher has “consistently sought to exploit African-American talent, in particular in Fortnite, by copying their dances and movement.”

Jaylen Brantley and Jared Nickens say they created the “distinctive and immediately recognizable” dance behind the “Running Man Challenge,” a viral phenomenon that got Brantley and Nickens invited onto The Ellen Degeneres Show for a performance. Last year, Epic introduced an extremely similar-looking Fortnite emote called “Running Man.” Brantley and Nickens claim that the dance is “synonymous” with them, and that Epic shouldn’t be able to copy it without getting permission or offering compensation.

A law firm claims that someone impersonated one of its attorneys in messages to the US Copyright Office, trying to sabotage lawsuits against Fortnite developer Epic Games. Pierce Bainbridge published a fake email supposedly sent under the name of attorney David Hecht, asking the office to reject all its copyright claims for dance moves — and confessing that “what my clients and I have done towards certain gaming companies were very wreckless [sic] and baseless.”

Hecht is the lead attorney for several people who claim Epic unlawfully copied their dances as Fortnite emotes, including rapper 2 Milly; The Fresh Prince of Bel-Air star Alfonso Ribeiro; and most recently, the rapper BlocBoy JB. As part of the legal process, Hecht’s applied to register all these dances with the Copyright Office. But the office reportedly tipped him off to a strange message this weekend:

The US Copyright Office refused to register The Fresh Prince of Bel-Air star Alfonso Ribeiro’s “Carlton dance” routine, likely weakening lawsuits against two game studios that copied the dance. In new legal filings, Take-Two Interactive produced letters and emails from the Copyright Office, showing serious concern over whether the dance qualified for copyright protection and, if it could, whether Ribeiro even owned the rights.

Ribeiro sued Take-Two for copying the Carlton dance, which he created while playing Fresh Prince character Carlton Banks, for a celebratory dance gesture in NBA 2K. He’s also filed a lawsuit against Epic Games, which used a version of the Carlton dance in Fortnite. As The Hollywood Reporter notes, Take-Two filed a defense earlier this week, asking a judge to dismiss the case. It argues that Banks’ dance is too basic to be protected by copyright, which only covers more complex “choreography.”

James Baker, also known as rapper BloBoy JB, is the latest person to file a lawsuit against Fortnite developer Epic Games, this time over the use of his “Shoot” dance move in the popular battle royale hit. Known as “Hype” in the Fortnite community, “Shoot” is one of the most popular emotes that millions have people have seen performed. It requires the dancer to swing their arm and leg back and forth in a choreographed motion, as seen in the GIFs below. It was included as an unlockable emote in Fortnite’s battle pass subscription service, which costs $10 for up to three months. The emote was not, however, ever sold directly for money.

BlocBoy JB first asked his fans on Twitter if he should sue Epic Games, especially in wake of other artists including 2 Milly, Fresh Prince of Bel-Air’s Alphonso Ribeiro, and Russell “Backpack Kid” Horning launching their own lawsuits over stolen dance moves. It’s the same move that Donald Faison, who played the character Dr. Chris Turk on Scrubs, did when he learned his dance was included in the game, although Faison has yet to file a suit of his own.

Microsoft-owned Turn 10 Studios, which develops the Forza series of racing games for Xbox and PC, today announced it would be removing two controversial dance emotes from its latest entry, Forza Horizon 4. The news, spotted by Polygon and announced on Forza’s website as part of the most recent update release notes, marks the first instance of a game developer backing away from asserting its right to copy and include a virtual version of a dance move popularized in real life. The news follows numerous lawsuits against Fortnite creator Epic Games for doing the same in its massively popular battle royale game.

Turn 10 does not make any mention of legal issues surrounding the two emotes, dubbed the “Carlton” and the “Floss.” Instead, the developer lists the removals under a section at the bottom of the release notes title, “Other Improvements,” simply stating both dances “are no longer available.”

Epic Games’ Fortnite is the biggest game on the planet right now, but one of its biggest sources of revenue — the ubiquitous dance “emotes” — are now under legal threat from the pop culture icons that claim to have created them.

Emotes have become a big business in the game industry. Game studios make new ones every day, and Epic sells its Fortnite emotes for anywhere between $5 and $10, contributing substantially to the hundreds of millions in monthly revenue earned by its battle royale mega-hit.