Orange Shirt Kid is the next person to sue Fortnite for using his dance

midian182

TechSpot Editor
Staff member

Back in April last year, Epic Games held a contest that asked people to share recordings of their dances, the best of which would end up as a Fortnite emote. One of the entries came from Orange Shirt Kid, and while it didn’t win the competition, his enthusiastic moves struck a chord with fans. A petition was launched, and the dance made its way into the game.

Now, however, the boy’s Mom, Rachel McCumbers, has decided to join The Fresh Prince’s Alfonso Ribeiro, rapper 2 Milly, and Backpack Kid in suing the game maker for “unauthorized misappropriation" of a dance. As with all the other cases, McCumbers is being represented by the law firm of Pierce Bainbridge Beck Price & Hecht LLP.

"Defendants did not credit Orange Shirt Kid nor seek his consent to use, display, reproduce, sell or create a derivative work based upon Orange Shirt Kid's Random dance or likeness in Fortnite," states the lawsuit.

The suit adds that the inclusion of the dance saw the boy experience cyberbullying to such an extent that he was forced to deactivate his Instagram and YouTube accounts.

What’s different about this case is that Orange Shirt Kid entered a competition that stated entrants would be handing Epic the rights to their dances. The T&Cs also explained that participants wouldn’t be paid, but there’s no mention of the competition in the lawsuit.

When Orange Justice appeared in Fortnite along with the "It's also a great exercise move” catchphrase, OSK celebrated in some now-deleted tweets.

As noted by PC Gamer, here’s a fairly amazing part of the lawsuit:

As one example, a USA Today article featured First Lady Michelle Obama performing what is clearly the Random dance at Children’s Hospital Colorado in December 2018. Instead of referring to the dance as the Random, the First Lady was quoted as saying “Santa doin’ Orange Justice!” which demonstrates that even she was misled about the nature of the dance she was performing.

Orange Shirt Kid Versus Epi... by on Scribd

Permalink to story.

 

fl21289

TS Booster
Was the dance copyrighted or trademark??? I don't get my generation (I'm 29) everyone sues for everything and everyone gets offended for everything.... What happened to the good old times when people just moved on with their lives and had a pair between their legs?
 
  • Like
Reactions: crybabymat

ShagnWagn

TS Guru
So, we are now patenting moving appendages? If Epic Games didn't have money, this crap wouldn't be happening. It's all about the love of money.
 
  • Like
Reactions: BSim500
S

senketsu

The dance is submitted for a contest. At that point he gives up all rights, I'm surprised he even has the right to perform the dance himself. Seriously.
shame on the law firm of Pierce Bainbridge Beck Price & Hecht LLP for accepting this
shame on the boy’s Mom, Rachel McCumbers
"Moreover, Epic also misappropriated numerous other
popular dances, including Orange Shirt Kid’s Random dance. Upon
information and belief, Epic did not seek consent or authorization to use
any of these movements or dances.
Soon after its release, Fortnite became an international
phenomenon....<snip>….Fortnite’s popularity has translated into record sales for
Epic. Analysts have estimated that since its release, Fortnite has
generated between $1 billion to $2 billion in revenue through in-game
purchases such as emotes."
Sounds like the argument is, when we gave the dance away, we never knew how huge the profits would be and we didn't get any...
 
  • Like
Reactions: Reehahs

Cal Jeffrey

TS Evangelist
Staff member
I didn't read the rules of this particular contest, but I have read the rules for many others, and I'm pretty sure the judge will laugh these bozos right out of the courtroom and charge them with contempt just for being so stupid and wasting his time. The rules for contests like these are worded very carefully and cover every base. I would not at all be surprised to find a clause that states that "all entries become the property of Epic." It's pretty standard in these types of contests.
 

TomSEA

TechSpot Chancellor
Anymore of this crap, Techspot will die for me. This is not twitter or facebook to publish such crap!
I don't mind the fluff pieces. There's only so much tech to report on anyway. I'd rather see 5-6 "of interest" articles a day than only 2-3 pure tech articles. It's easy to skip the ones you're not interested in.

Plus there's the forums which are very active and are almost 100% tech-oriented.
 
Last edited:

Nobina

TS Evangelist
I should sue Epic Games because they have running animations in game and I ran before them so they're copying me...actually, no, I should sue everyone.
 

crybabymat

TS Rookie
Its honestly a shame that orange shirt kids mother is suing epic games.But theirs one thing that there doing it for...money they know epic games has becomed extremely wealthy within the millions and I don't doubt in the later future billions.She is only doing it for a quick payday which is what america is about.Theirs one thing epic games can use though its the competition and through the competition they knew they would only be getting paid in fame not fortune but the bad apple of the bunch(Rachael Mccumbers)has exploited this
 

crybabymat

TS Rookie
Was the dance copyrighted or trademark??? I don't get my generation (I'm 29) everyone sues for everything and everyone gets offended for everything.... What happened to the good old times when people just moved on with their lives and had a pair between their legs?
exactly
 
  • Like
Reactions: Arris

dirtyferret

TS Evangelist
I perfected the "standing still while everyone else dances" dance and will sue the pants off anyone who uses it in a video game!
 

kmo911

TS Booster
If a move a C righted we cant bread or watch at anyone. everybody must do that every day. talking about moves mouth move nxt ? Comment also on fb. so this is C righted DOH

this is the case
 
I talked to a friend after the Carlton thing mentioned above and he already went through this years ago with another video game and his lawyer said that individual dance moves are not copyrightable. An entire dance routine that a choreographer makes for a feature (stage, film, etc) is copyrightable but the individual dance moves contained within are not. Now there's a line to be drawn somewhere between the two but I don't know where that line is.
 

kevbev89

TS Maniac
I'm pretty sure the law firm reached out to the "copied" people and said something along the lines of "we'll sue Epic and you don't have to do a thing. We'll just take 50% of the settlement."

I bet the law firm is aiming to get a settlement instead of going to court.
 

toooooot

TS Evangelist
The dance is submitted for a contest. At that point he gives up all rights, I'm surprised he even has the right to perform the dance himself. Seriously.
shame on the law firm of Pierce Bainbridge Beck Price & Hecht LLP for accepting this
shame on the boy’s Mom, Rachel McCumbers
"Moreover, Epic also misappropriated numerous other
popular dances, including Orange Shirt Kid’s Random dance. Upon
information and belief, Epic did not seek consent or authorization to use
any of these movements or dances.
Soon after its release, Fortnite became an international
phenomenon....<snip>….Fortnite’s popularity has translated into record sales for
Epic. Analysts have estimated that since its release, Fortnite has
generated between $1 billion to $2 billion in revenue through in-game
purchases such as emotes."
Sounds like the argument is, when we gave the dance away, we never knew how huge the profits would be and we didn't get any...
I think the problem is that someone else submitted it as it was a popular vid. Epic didn't do a good job verifying it came from the creators or his family. If the dance is unique and not similar to other popular dances known to humanity, then at the very least Epic shouldn't use it.