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Another Suit Filed Against Fortnight over Misappropriation Claims

Elizabeth DiNardo, Esq. | Associate Counsel

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On January 23, 2019, Epic Games Inc. (“Epic”), creator of the popular video game Fortnite, was served with claims that the game-maker misappropriated the signature dance moves of professional rapper Blocboy JB, known as “The Shoot.”

The complaint was filed in federal court in the Central District of California by Blocboy, whose real name is James Baker. In the complaint, Baker argues that Epic unfairly profited from exploiting his protected creative expression, likeness and trademark without consent or authorization through its in-game dance called “Hype.” In the game, players can purchase dance moves to customize their in-game avatars. Fresh Prince of Bel-Air star, Alfonso Ribeiro, also previously filed suit against Epic for the use of his signature dance move, “The Carlton.” Baker claims that the Fortnite creators were attempting to connect with a younger audience through the sale of The Shoot dance move, which is inextricably linked to Baker’s celebrity persona and his 2017 song by the same name.

Fortnite has become one of the most successful video games on the market with gross profits reaching around $3 billion in 2018. In May 2018 alone, the game grossed $318 million, its most successful month yet, which coincided with the introduction of the Hype dance move. Baker argues that the accelerated success can be directly attributed to the addition of his signature move. The plaintiff argues that Epic should not profit from his hard-earned fame through intentional misappropriation of his original content. Baker is seeking an injunction against the continued use of the Hype dance move in the game, in addition to damages including, but not limited to, Epic’s profits attributed to its improper use of the Hype dance and the rapper’s likeness.

The suit brings causes of action for direct infringement of copyright, contributory infringement of copyright, violation of the right of publicity under California Common Law, violation of the right of publicity under California Civil Code Section 3344, unfair competition under California Business Code Section 17200, trademark infringement under 15 USC Section 1125(a), trademark infringement under California Common Law and trademark dilution under 15 USC Section 1125(c).

The case is: Baker et al. v. Epic Games Inc. et al., Case No.: 2:19-cv-00505, in the U.S. District Court for the Central District of California.

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