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Saxophone player sues Epic over Fortnite’s saxophone emote

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Leo Pellegrino claims Epic misappropriated his likeness with the popular Phone It In emote

Photo by Vjeran Pavic / The Verge

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.”

Pellegrino is represented by Pierce Bainbridge Beck Price & Hecht LLP, the same firm representing a number of other artists, internet celebrities, and actors in emote-based claims against Epic. Other clients include 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 “BlocBoy JB” Baker.

In this case, Pellegrino is not making a copyright claim over his saxophone dance, but he is suing exclusively over misappropriation of likeness. All of the other cases attempt to establish that dance moves can be copyrighted, a contentious interpretation of copyright law with no clear legal precedent.

The choice is likely a legal strategy. Nearly every lawsuit filed against Epic is on pause after a Supreme Court ruling. That ruling requires the US Copyright Office to respond before any of the suits can move forward. As a result, Pierce Bainbridge had five of its suits temporarily dismissed last month while the firm waits for copyright approval. Since Pellegrino’s case relies entirely on likeness rights, it should be unaffected by that pause.

At the same time, Fortnite has a long history of drawing off likenesses in pop culture. In late 2017, the game added a skin called The Reaper that was very clearly modeled after Keanu Reeves’ persona in the John Wick films. It’s also used dances popularized by Snoop Dog and Will Smith as well as actor Donald Faison, whose dance for the sitcom Scrubs became the default Fortnite emote when the battle royale variant launched in September 2017. It’s unclear whether Epic purchased likeness rights for any of the subjects. In a statement, an Epic spokesperson said the company does not comment on ongoing litigation.

It’s not clear that Fortnite’s “Phone It In” emote is actually copying Pellegrino. In announcing the suit, Hecht attached a video of Pellegrino performing live as evidence of the likeness misappropriation. Part of the claim appears to be that Pellegrino uses “outward pointing feet” while playing and that his other signature is “his love of putting on energetic performances playing the saxophone.” Hecht told The Verge that Pellegrino is “duck-footed,” meaning his splayed feet are a result of his natural anatomy.

However, one can also make the case that Epic’s emote was inspired by a meme known as Epic Sax Guy, in which Moldovan musician Sergey Stepanov enthusiastically performs the saxophone while performing the song “Run Away” for the Eurovision Song Contest in 2010. The performance quickly went viral back then and remains an easy-to-find meme today, with numerous remixes and edits on YouTube.

Searching “Epic Sax Guy Fortnite” brings up numerous videos comparing Stepanov’s performance with the “Phone It In” emote, drawing the link between the obvious similarities.

Whatever the inspiration, Fortnite’s emote-based economy has been undeniably lucrative. Last year, Epic is estimated to have made $2.4 billion on the game, solely through these in-game transactions and the Battle Pass subscription service, which includes some of the emotes the developer has been sued over. What’s still unclear is whether Epic owes any of that money to the creators who inspire its aesthetic and the items it offers for sale.