Court Dumps Almost All Of A New York Sax Player's Lawsuit Against Fortnite Over Use Of His 'Likeness'
from the beginning-of-the-end-of-emote-based-litigation dept
Last year, a New York saxophonist decided Fortnite was going to make him rich. He wasn’t going to livestream his gameplay or join the development team. Instead he, like far too many others, decided a Fortnite “emote” had ripped off something of his: his “likeness.”
Joining such illustrious and aggrieved stars like Alfonso Ribeiro and… um… “Backpack Kid,” Leo Pellegrino decided a sax-playing emote took his personality and gave it away to Fortnite players. His legal reps managed to ignore the fact the “emote” played a tenor sax, rather than Pellegrino’s signature bass sax, along with some recorded evidence that the emote in question might actually be an homage to a completely different saxophonist.
The court has now weighed in on Pellegrino’s suit and found there’s (almost) nothing in it he can sue about. Eric Goldman’s post on the ruling opens with this fun fact about the plaintiff.
Pellegrino is a saxophone player with “externally rotatable feet,” which has helped him develop a nifty “signature” dance move while playing.
So, Pellegrino has that going for him. But really nothing else. The court [PDF] has this to say about the alleged use of Pellegrino’s “likeness” by Fortnite.
Applying the test as articulated in Hart, we observe that the Complaint does not allege that the Fortnite avatars equipped with the Phone It In emote, i.e., Pellegrino’s likeness, share Pellegrino’s appearance or biographical information. Indeed, the Complaint contains a picture of a Fortnite avatar equipped with the Phone It In emote, and the avatar does not bear a strong resemblance to Pellegrino. The Complaint also alleges that Fortnite players can customize their avatars with “new characters” and a variety of emotes mimicking celebrities other than Pellegrino. The Complaint further alleges that the avatars fight in a battle royale and can execute emotes like Phone It In “while in the Fortnite Universe,” amidst “us[ing] weapons and violence to eliminate the competition,”, whereas Pellegrino is alleged to be a musical performer who executes his Signature Move at musical performances. These allegations establish that the avatars in Fortnite do not share Pellegrino’s identity nor do what Pellegrino does in real life. We therefore conclude that Epic’s use of Pellegrino’s likeness is sufficiently transformative under the Transformative Use Test to provide it with First Amendment protections that are not outweighed by Pellegrino’s interests in his likeness.
Pellegrino’s right to publicity and privacy claims are dead, partially undone by Pellegrino’s own filing which inadvertently pointed out the transformative aspects of the Fortnite emote. His unjust enrichment claim is equally faulty as Pellegrino can’t show any agreement was reached between him and Epic Games, making it impossible for Fortnite to have unlawfully taken anything it had agreed to give to Pellegrino.
There’s no judicial sympathy for Pellegrino’s extremely-distended unfair competition claims either.
Epic maintains that the Complaint alleges that Epic is a video game publisher and that Pellegrino is a saxophone player, and thus, the parties supply different goods. Indeed, the Complaint alleges that Pellegrino is a saxophone player, a member of “two brass-based musical groups” and performs music at musical performances. In contrast, the Complaint alleges that Epic develops and sells video games. Based on these allegations, it is plain that the parties do not supply similar goods or services. Pellegrino nevertheless maintains that the parties are competitors “in the field of selling dance performances” because Epic sells emotes that are “virtual dance performances.” Pellegrino, however, provides no case law, and we are aware of no case law, that would support such a broad construction of “competitor.
The only thing that survives the court’s examination is Pellegrino’s “false endorsement” claim. And that just barely does. The court says it could be argued the use of Pellegrino’s likeness falsely suggests Pellegrino endorses Fortnite, but since the court has already said the use is transformative, it’s unlikely Fortnite players are drawing this conclusion from the Phone It emote.
Every other claim is dismissed with prejudice, with the court pointing out there’s zero chance Pellegrino could somehow amend his complaint into something actionable. This was an opportunistic lawsuit, pushed by an opportunistic firm. It should have been dead after the first motion to dismiss. That it wasn’t isn’t a reflection on the merits of Pellegrino’s lawsuit. Allowing one claim to move forward is only going to cost Pellegrino more money while giving him almost no chance of succeeding. If Epic moves for a fee shift after prevailing, it will cost him even more.