Not only is the goofy dance popularized by the 'Orange Shirt Kid' a great exercise move, it's also great way to exercise the law. Upon submitting a dance to the Fortnite BoogieDown contest (opens in new tab), the Orange Shirt Kid quickly found himself at the center of internet celebrity. The dance wasn't a winner, but after fans petitioned (opens in new tab) for its inclusion in Fortnite anyway, the dance eventually made the cut as a free reward in the season four Battle Pass. It was a feel-good internet story at the time.
But now the mother of Orange Shirt Kid is suing Epic over the inclusion of his dance in Fortnite.
Rachel McCumbers represents her son, joining 2 Milly, Alfonso Ribeiro, and Backpack Kid (opens in new tab) in pursuance of legal recompense over the use of their dances and likenesses in Fortnite. They're all represented by the same law firm too: Pierce Bainbridge Beck Price & Hecht LLP.
The thrust of the case is much like the others, stating that the "Defendants have unfairly profited from exploiting Orange Shirt Kid’s protected creative expression, likeness, and trademark without consent or authorization." The suit also alleges that Epic's inclusion of the dance was the impetus for a wave of cyberbullying directed towards McCumbers' son that forced him to deactivate his Instagram and YouTube accounts.
Put simply: McCumbers believes Epic's making money on her kid's moves and painting an easy target for internet jerks.
The dance, referred to as The Random by McCumbers, has blown up in popularity via Fortnite, where it's called the Orange Justice, though it carries the same catchphrase: "It's also a great exercise move." Problem is, the suit makes no mention of the official Fortnite BoogieDown contest that brought the dance into the light in the first place. The grand prize winner of the BoogieDown contest would see their dance made into an in-game emote, alongside a small V-Bucks prize.
OSK did not win the BoogieDown contest, but his dance was submitted with the intent of winning, which would imply consent for use of the dance as an in-game emote. Win or lose, though, the rules for entry (opens in new tab) alone are broad enough to suggest that Epic is still in the clear:
"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."
Of all the dance suits so far, OSK's is on the shakiest ground. The document leaves out some pretty important information, and OSK was pretty excited to see his moves in-game, though those celebratory tweets are now deleted.
Read the case files below, or just read this excerpt and try not to get a nosebleed.
"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."
Thanks, Variety (opens in new tab).