The creator of Fortnite Epic Games faces a lawsuit by the saxophonist based in New York City, Leo Pellegrino, who claims that the developer has used his likeness without permission when designing a saxophone dance in the game. The lawsuit was filed today in federal court in the Eastern District of Pennsylvania.
The emote, called "Phone It In", allows players to take out the brass instrument and play a quick melody while they dance. Pellegrino, best known for his Brass House band, Too Many Zooz, says that his "characteristic movements have become inseparable from his person and his life story" and that Epic had not previously requested permission to use his likeness or "his movements". distinctive ". 19659003] Pellegrino is represented by Pierce Bainbridge Beck Price & Hecht LLP, the same firm that represents several other artists, Internet celebrities and actors in claims based on emotes against Epic. Other clients include Fresh Prince of Bel-Air star Alfonso Ribeiro, Russell "Backpack Kid" Horning, the anonymous Fortnite fan known as "Orange Shirt Kid", and rappers Terrence "2 Milly "Ferguson and James" BlocBoy JB "Baker.
In this case, Pellegrino is claiming copyright on his saxophone dance, but is suing exclusively for the misappropriation of similarity. All other cases try to establish that dance movements may have copyright, a contentious interpretation of the copyright law without a clear legal precedent.
The choice is probably a legal strategy. Almost all of the lawsuits filed against Epic are on hold after a Supreme Court ruling. That decision requires that the United States Copyright Office respond before any of the lawsuits can proceed. As a result, Pierce Bainbridge had five of his claims temporarily dismissed last month while the firm waits for the approval of copyright. Since the case of Pellegrino is based entirely on image rights, it should not be affected by that pause.
At the same time, Fortnite has a long history of similarities in pop culture. At the end of 2017, the game added a skin called The Reaper that was modeled very clearly from the personality of Keanu Reeves in the films of John Wick . Dances popularized by Snoop Dog and Will Smith are also used, as well as by actor Donald Faison, whose dance for comedy Scrubs became the default Fortnite emote when the battle was launched in September 2017 It is not clear if Epic bought image rights for any of the subjects. In a statement, a spokesman for Epic said the company does not comment on ongoing litigation.
It is not clear that the emote "Phone It In" of Fortnite is actually copying Pellegrino. When announcing the lawsuit, Hecht attached a video of Pellegrino playing live as evidence of the misappropriation of the image. Part of the claim seems to be that Pellegrino uses "feet that point outwards" while playing and that his other signature is "his love for making the saxophone performances energetic". Hecht said The Verge that Pellegrino is "duck legs", meaning his outstretched feet are the result of his natural anatomy.
However, it can also be said that the Epic emote was inspired by a meme known as Epic Sax Guy, in which the Moldovan musician Sergey Stepanov enthusiastically interprets the saxophone while performing the song "Run Away" for the Festival of the Eurovision Song Contest in 2010. Performance quickly went viral at the time and is still an easy meme to find today, with numerous remixes and editions on YouTube.
When looking for "Epic Sax Guy Fortnite" there are numerous videos that compare the performance of Stepanov with the emote "Phone It In", drawing the link between the obvious similarities.
Whatever the inspiration, the economy based on the emote of Fortnite has been undeniably lucrative. Last year, it is estimated that Epic earned $ 2.4 billion in the game, solely through these in-game transactions and the Battle Pass subscription service, which includes some of the emotes that the developer has been sued for. What is still unclear is whether Epic owes some of that money to the creators that inspire its aesthetics and the items it offers for sale.