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Epic mostly wins Fortnite saxophone lawsuit, but judge lets one claim go forward

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It’s still bad news for dance lawsuits

Photo by Vjeran Pavic / The Verge

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.

Padova says Epic has sufficiently “transformed” Pellegrino’s likeness with the emote, so it’s protected by the First Amendment. The dance might be recognizable. But it’s not tied to other aspects of Pellegrino’s identity, which makes the move “primarily Epic’s own expression rather than Pellegrino’s likeness.” It cites the fact that Fortnite avatars don’t look like the saxophonist nor share biographical details with him: he’s a musician who performs the move during shows, and Fortnite characters are fighters in a battle royale tournament.

Pellegrino also claimed a trademark on the dance, but these claims didn’t hold up either because Padova concluded they’re preempted by copyright law. Essentially, Padova says that if Pellegrino’s dance is protected by intellectual property law at all, it should be a matter of copyright — which explicitly covers creative choreographed dance sequences. So he can’t assert trademark protection (which can last indefinitely, while copyrights expire) as an end run around copyright law.

And as we wrote last year, that was probably Pellegrino’s exact strategy. Several earlier Fortnite lawsuits accused Epic of copyright infringement. The short dances in question weren’t clearly copyrightable, though. They fell into a murky ground between non-protected single dance steps and protected choreographed routines. Then, a Supreme Court decision raised the bar for filing suits, requiring a response from the US Copyright Office first. That meant several cases were temporarily dismissed, and later complaints — like Pellegrino’s — have often focused on Epic stealing likenesses instead of copyrighted moves.

This case is bad news for that gambit. It determines that a dance isn’t enough to establish a likeness, and it closes the door to basic trademark claims, leaving dancers more dependent on an increasingly tenuous-looking copyright strategy. Fortnite lawsuit attorneys have said they’ve obtained copyrights for some dances, but at least one high-profile dance was mostly rejected by the Copyright Office.

Padova did keep the false endorsement complaint open. But legal expert and blogger Eric Goldman, who consistently covers the Fortnite suits, doesn’t find its argument very convincing. The court didn’t say Pellegrino would prevail, simply that his claim wasn’t obviously barred by an established legal doctrine. So while this case doesn’t establish that copying dances is legal, and definitely doesn’t establish that it’s ethical, it narrows the path to victory for emote lawsuits.