Epic Games Asks Court to Declare 'Fortnite' Dancing Pumpkin Doesn't Infringe on Viral Character

A former news anchor who licensed his "Dancing Pumpkin Man" dance moves to Epic Games threatened to sue the company for also using his viral character's likeness without permission.
Courtesy of Epic Games

Fortnite maker Epic Games is asking a New York federal judge to declare that its dancing pumpkin feature doesn't infringe on the copyright or trademark rights in a former Omaha news anchor's "Dancing Pumpkin Man" character.

The popular game's Fortnitemares edition offered a "Pump It Up" feature that gave a player's character a pumpkin head. Matthew Geiler, through his company Sick Picnic Media, sent Epic a cease and desist claiming the company was using his character's likeness without permission and threatened to sue. Further complicating the situation: the parties entered into a licensing deal over the choreography from Geiler's viral video. (More on that below.) Epic on Friday fired first, asking the court to clear up the controversy.

Fortnite includes features called "emotes" that allow a player "to express his or her emotions in the game or to taunt other players" using short, preprogrammed movements, according to Epic's complaint. 

Here's an example of the emote at issue from the complaint:

Epic's attorney Dale Cendali describes in the filing how it works. "In the Pump It Up Emote, the avatar performs a brief dance to a Halloween-themed song developed by Epic Games while the head of whatever avatar the player has selected is transformed into a jack-o’-lantern face designed by Epic Games," she writes. "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. The Pump It Up Emote can be performed by any avatar in the game, including fantastically dressed male avatars, female avatars, and avatars of other species."

Cendali argues there's no similarity to the video 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." She also argues that, even if there were similarity, Geiler's creation doesn't have the level of specificity required to garner copyright protection. (A long list of famous pumpkin-headed characters is included.) On the trademark front, Cendali argues that Geiler has no trademark rights in his character because it's not used in commerce to identify the source or origin of a product or service. 

Further, Epic argues, Geiler licensed the choreography to the game maker in August in exchange for $10,000. (Read the agreement here.) Epic is asking the court to enter a declaratory judgement of non-infringement and award attorneys' fees and costs. 

This isn't the first time Epic has been in court over an emote based on a viral video. Both Backpack Kid and Orange Shirt Kid, as well as Fresh Prince star Alfonso Ribeiro and rapper 2 Milly, previously filed and withdrew complaints. 

Geiler has not yet responded to a request for comment on the complaint. Both the filing and the "Dancing Pumpkin Man" video are posted below.