Epic Argues ‘Fortnite’ Dance Suit Barred by Copyright Law

“Fortnite” maker Epic Games told a federal court that lawsuits filed against it for allegedly stealing dances are barred by copyright law.

Epic told the Central District of California March 1 that rapper James Baker’s trademark and right of publicity claims are preempted by the Copyright Act because they relate to a type of work generally protected by federal law.

Baker, whose rap name is BlocBoy JB, says that Epic used his “Shoot” dance in the video game without permission. Baker initially sued Epic for infringement under copyright, trademark, and right of publicity law. Baker dropped his copyright claims after the U.S. Copyright Office ruled the dance was too simple to merit protection.

The Copyright Office also denied registration to two dance moves at issue in related Fortnite infringement cases—the “Carlton Dance” and the “Milly Rock.”

Epic said the claims are preempted because the dance is covered by copyright law and Baker’s claims cover rights equivalent to copyrights.

The claims are also barred by the First Amendment, Epic said, because the dance is artistically relevant to Fortnite.

Epic also argued the right of publicity claims should fail because they are covered by Tennessee law, Baker’s home state, which only protects names, photographs, and images.

Epic wouldn’t be liable under California right of publicity law either, it said, because Baker doesn’t share physical characteristics with Fortnite avatars, and the game’s use of the dance is transformative.

Kirkland & Ellis LLP represents Epic. Pierce Bainbridge Beck Price & Hecht LLP represents Baker.

The case is Baker v. Epic Games, Inc., C.D. Cal., No. 2:19-cv-00505, memorandum filed 3/1/19.