Epic Games Preemptively Sues for Declaratory Judgment

On December 9, Epic Games preemptively filed a complaint against Sick Picnic Media (Epic Games, Inc. v. Sick Picnic Media, LLC and Matthew F. Geiler 1:19-cv-11215-PGG) for declaratory judgment of non-infringement. The complaint was filed in the New York Southern District Court. Epic Games is represented by Kirkland & Ellis.

Epic Games, the creator of the popular video game Fortnite, preemptively filed a complaint against Matthew Geiler, also known as the Dancing Pumpkin Man from a viral video. Geiler told Epic Games to stop offering a “Halloween-themed emote called ‘Pump It Up,’ which copies his dance and briefly gives avatars a jack-o’-lantern for a head.” (An emote is an action that the player’s avatar in-game can perform.) Epic filed the complaint to ask the courts to declare the company did not infringe upon his trademark or copyright. 

Epic has faced other suits over dance emotes, such as the Fresh Prince of Bel-Air star Alfonso Ribeiro, which have solely referred to the dance moves. The suit with Geiler focuses on dance moves but also the character likeness.

In its complaint, Epic Games claimed that Fortnite has not infringed on Geiler’s copyright or trademark rights. The Halloween-themed emote, Pump It Up, was available for one day before Halloween as part of the Fortnitemares event. Pump It Up performs a quick dance to a Halloween-themed song created by Epic Games, and the head of the player avatar also changes into a jack-o’-lantern, also designed by Epic Games. “The jack-o’-lantern face has moving green flames pouring from the eyes, nose and mouth, a broad, grinning mouth, a long, prominent stem that curves, and dark striations delineating the segments of the pumpkin giving it a yellow-and-orange design.” Sick Picnic and Geiler alleged that Pump It Up infringed upon the character, “Dancing Pumpkin Man”, in which “Geiler is dressed in a plain black unitard he did not make, wearing as a mask a jack-o’-lantern decoration he did not create, dancing to a song he did not write in front of a static, generic graveyard image.” The complaint stated that there is no infringement because he does not own a protectable character. Further, the jack-o’-lantern heads look different. According to the complaint, “it is simply the idea of an ordinary jack-o’-lantern head on a non-descript, plain black unitard body.  This does not rise to the level of specificity needed, as a matter of law, to create a copyrightable character.” The complaint claimed that Geiler did not create these characteristics and therefore cannot copyright them. As more evidence of his lack of creation of the character, the complaint stated, “he took a preexisting, third-party Halloween jack-o’-lantern decoration from his company’s holiday lobby display and fashioned it into a mask. Nor did Geiler create the simple black unitard.”  This is not completely original work.

The jack-o’-lanterns look different. The complaint claimed:

“In contrast to Fortnite’s Pump It Up Emote, the Defendants’ alleged character’s jack-o’-lantern face has a narrower mouth and a smaller aperture to the eyes and nose, there are no moving green flames shining through the holes, its jack-o’-lantern head is smaller than Fortnite’s Pump It Up Emote and is a uniform orange color, as opposed to a striated, yellow-and-orange-toned design.  The stem on Defendants’ jack-o’-lantern is smaller than the stem in the Pump It Up Emote.  The bodies and costumes of the figures are also not substantially similar.  The body of Defendants’ alleged “character” is an ordinary man in a plain black unitard.  Fortnite has over 200 avatars (including female avatars and avatars of other species) whose heads can be briefly replaced by the Pump It Up Emote – none of these avatars’ bodies wear a plain black unitard.”

Here is an example of the contrasting images: