Orange Shirt Kid joins the legal battle over Fortnite dances as Epic reintroduces glider re-deploys

    
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A jetpack could have prevented this.

The epic saga of Epic Games’s legal battles over Fortnite dance emotes continues as the mother of the player popularly known as Orange Shirt Kid has filed a suit against the studio seeking to have the Orange Justice dance removed from the game. This case is a bit unusual, however, compared to the lawsuits brought forward by rapper 2 Milly and actor Alfonso Ribeiro, as the Orange Shirt Kid originally submitted the Orange Justice dance — originally called The Random — directly to Epic as part of the studio’s Boogie Down contest, which called for players to submit their dances for a chance at being added to the game.

Although Orange Shirt Kid’s dance didn’t actually win the contest, it quickly gained popularity among the game’s community (and the internet at large), and a subsequent Change.org petition garnered 14,428 signatures, and the dance ultimately ended up in the game anyway. Now, however, Orange Shirt Kid’s mother, Rachel McCumbers, is accusing Epic of “copyright infringement, misappropriation of the dance move […] and unfairly profiting from Orange Shirt Kid’s creative expression and likeness without consent.” As with the other aforementioned lawsuits, there’s no telling how the ruling on this one will come down, but it’ll be interesting to see whether the dance’s Fortnite-targeted origins will set it apart from the others.

Oh, and in other Fortnite-related news, it looks like the previously removed glider re-deploy mechanic will be making its return in v7.20 today as an item that can be found as loot around the map. The re-deploy will otherwise function identically to its previous incarnation, except that each use will now consume one charge of the item, and once all the charges are used up, the item will disappear. Previously, the community seemed fairly split on the mechanic’s inclusion, but whether this new iteration will find more widespread acceptance remains to be seen.

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Joey Desarno
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Joey Desarno

Money: it opens all doors, it ruins relationships- In this case, more just a mom wanting some money, OH WELL!

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Sorenthaz

This sounds more like the mom just wants to try and get a piece of the potential lawsuit pie. The kid obviously wanted this dance in the game even if he didn’t win the Boogie contest. Plenty of people memed about it and wanted it to become a dance, even Pewdiepie gave exposure to it. So in this case that seems really disingenuous by the mother trying to speak for her son.

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Bryan Correll

From his original video:

…if this actually stays in the game I’ll probably crap my pants.

Maybe part of mom’s suit is for the replacement of pants.

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Crowe

NICE!

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Utakata

Frivolous – adjective
friv·​o·​lous | \ ˈfri-və-ləs \

1) a : of little weight or importance.

b : having no sound basis (as in fact or law).

2) a : lacking in seriousness.

b : marked by unbecoming levity.

Source: https://www.merriam-webster.com/dictionary/frivolous

/le sigh

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Paragon Lost

Makes me wonder, as to whether or not someone(s) will go after World of Warcraft since all the various races have dances that are based on various real world dances in our culture. Our world, an odd litigious place.

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Sorenthaz

The difference is that Fortnite actually sells these dances for currency that costs real money. MMOs/etc. can benefit from simply saying that they’re doing parodies and aren’t profiting off of it.

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Paragon Lost

Good point. the parody rule could save them from having to deal with law suits since they aren’t charging extra for access to the moves in WoW.

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Stormwaltz

“Mooooom, stop suing the game company that made me famous on the internet!”

I mean, look at this from a teenager’s perspective. That kid must be mortified. This lawsuit is documentary proof he has the uncoolest parent ever.

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Greaterdivinity

Epic is collecting dance lawsuits like they’re Pokemon cards.

But this one seems pretty bullshit and like “mom” just wants to get some of them sweet Fortnite bux. The others likely have far stronger legs to stand on, but seeing as this kid submitted it as part of a contest agreeing to the fact that he wouldn’t be paid if his dance was used kinda torpedoes the whole attempt.

I guess the law firm was just looking for some free publicity, figuring they blow a dozen or so hours on this case knowing full well it’s going nowhere but manage to get some media attention for it.

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Tanek

I would be surprised if the entry form for the contest did not include the standard language saying that the entries submitted can be used by Epic various ways. If it is in there, this may not survive it. If it is not in there, could be more of a case.

Either way, if the rewards for the contest included anything more than the dance being added to the game, the kid should probably get those rewards.

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Mark Jacobs

I can’t imagine Epic didn’t have some kind of waiver/assignment of rights. OTOH, it may be a question of using his “likeness” versus using the dance moves.

OTOH, it could be nothing more than he didn’t get his stuff for being included and that got mom mad.

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Tanek

Someone looked it up and found the agreement here: https://www.epicgames.com/fortnite/en-US/news/boogiedown-contest-rules

Section 6 seems to be the relevant one.

6. LICENSE: As a condition of entry, Contestants hereby grants to Sponsor a non-exclusive, perpetual, irrevocable, worldwide, transferable, sublicensable, and royalty free license to use, modify, reproduce, prepare derivative works of, distribute, perform, and display the Submission in any and all media throughout the world and for whatever purpose Sponsor deems.

So the question is, does this cover this case, or is there another factor? Something like the age of the entrant or use of likeness as you mentioned. Or the fact that Epic apparently changed the submitted name of the dance (“The Random”) to Orange Justice?

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Darthbawl

Sounds like similar stuff that is in pretty much any contest/lottery. Going to guess that this person and/or mother didn’t read that section.

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Mark Jacobs

Yep, that’s a pretty standard clause. The only real question is whether the use of the kid’s likeness is covered by that at least IMO. The face that it is a “royalty fee license” pretty much covers them even if they didn’t give the kid a prize or two or three. As you say, the fact that he is an underage kid could also play a role both for the use of his likeness but also whether he could legally sign the agreement. I don’t know how old he was at the time but if he was under the age of majority, the entire agreement can be thrown out.

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Schmidt.Capela

Well:

– I truly doubt Epic is using the kid’s appearance; my guess is that “likeness” in the lawsuit is about the dance moves being identical to the submitted video, to the point of it seeing like mocap was used.

– As for the kid being underage, it’s standard procedure in contests like this to require entrants to either declare that they are adults or to get a parent or guardian to sign up the kid. If Epic had that requirement in place, then either the kid willfully lied about his age or identity (meaning getting damages out of Epic is going to be far more difficult) or one of the kid’s parents signed the kid (which, AFAIK, would make the agreement legally binding even if the kid was underage).

– Current copyright office guidance is that you can’t get a copyright for individual dance steps or “dances” that are just a few dance steps, which would make just about every one of Fortnite’s dance emotes uncopyrightable. For this case to go forward it would require that guidance to be thrown out by the courts.

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Mark Jacobs

Schmidt, agreed. I doubt that Epic would do the likeness thing either but you never know. I don’t play Fortnite so I don’t know if they copied the Orange Shirt Kid or just the dance moves. And yeah, I don’t expect a $$$ victory for the mother in this one unless they did use his face.

In terms of the age thing, yes, if the kid lied about his age it makes it harder for him to recover damages but if Epic saw the video and realized he was underage and used it anyway, that would change things. And yes, if one parent/legal guardian signed it, that would also make a victory less likely. But, as I’m sure you know, in these types of cases, the plaintiffs aren’t always going for a win, they are going for a settlement. :(

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Armsbend

“…Orange Shirt Kid’s”

The mother calls her kid ‘Orange Shirt Kid’?”

That’s weird.

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rafael12104

Lol! Maybe it’s his real name: First name Orange-Shirt, middle name Kid, last name McCumbers.

“Orange-Shirt, dinner is ready!”

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Eliandal

At least it’s not red! That would be BAD ;)!