In the ongoing saga of people suing Epic Games over Fortnite dance emotes, the latest person to enter the fray is Rachel McCumbers, the mother of a young Fortnite player known as “Orange Shirt Kid”. During the Boogie Down competition last year, “Orange Skirt Kid” became an internet sensation for his entry in the contest. While he didn’t win the contest (in fact, he placed 23rd overall), his video had enough popularity to lead to several petitions asking for Epic Games to add his dance emote into the game.
News of the Lawsuit first broke through Variety, which reports that the suit does not include reference to the Boogie Down contest or the boy’s tweets in which he submitted the dance to Epic Games. Those tweets have now been deleted.
McCumbers suit alleges that Epic Games has been exploiting Orange Shirt Kid’s dance move and has unfairly profited from his “protected creative expression, likeness, and trademark without consent or authorization.” The suit compares Epic’s Orange Justice emote to “selling a cheap knockoff,” and that Epic sold the Orange Shirt Kid’s “Random” dance in-game by renaming it ‘Orange Justice.’
In the lawsuit, filed last week, there’s no mention of the BoogieDown contest, nor of the tweets — now deleted — from Orange Shirt Kid in which he submits his dance moves or celebrates Epic’s post-contest decision to add him to the game. Instead, the child’s mother, Rachel McCumbers, says that Orange Shirt Kid “exploded in popularity in or around early 2018, after he made a video of himself performing the Random and the accompany Catchphrase.”
After the dance, which the lawsuit says is called “the Random,” gained popularity, Fortnite players started a campaign to encourage Epic Games to incorporate the Random in “Fortnite,” according to the suit. It also notes that the child was the victim of “extreme cyberbullying” and that he was forced to deactivate both his Instagram and YouTube accounts.
For a visual reference, here’s a video by YouTuber Kreachure that shows both the original “Orange Shirt Kid” dance and the Orange Justice emote in Fortnite.
Now, the trouble is, trademarking a dance move is not as easy as simply taking a video of yourself and submitting it for a trademark. While Choreography is protected by the US 1976 Copyright Act, it requires that several terms be met in order to qualify. And not all Fortnite dances are specific enough to do so.
Per The Guardian‘s investigation into the legality of suing over Fortnite dances:
The law differentiates between social dances, which everyone can perform, and choreography performed by experts. This means that no one can pop in and copyright the conga. So if Epic can claim these are social dances, it may tap dance out of court with its billions of dollars of revenue intact.
Which basically means we’re in for a long, protracted legal mess over all these dance moves.