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Epic sues Dancing Pumpkin Man over Fortnite emote cease-and-desist letter

(Image credit: Epic Games)
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Fortnite (opens in new tab) developer Epic Games is involved in a new legal tussle over one of the game's emotes, but in something of a twist, the studio is suing the dancer, rather than the other way around. 

As explained by The Verge (opens in new tab), Matt Geiler, better known to the internet as the Dancing Pumpkin Man (opens in new tab), sent Epic a cease-and-desist letter in October, demanding that it stop using his likeness in the "Pump It Up" emote, and threatened legal action if it refused to do so. After further exchanges failed to resolve the matter, Epic filed suit, seeking a preemptive ruling that it did not infringe upon Geiler's copyright or trademark.

Epic's filing, available in full at courtfiling.com (opens in new tab), refutes Geiler's claim that he created the "character" in the first place, noting that he made the mask from "a preexisting, third-party Halloween jack-o-lantern decoration from his company's holiday lobby display." It also points out that characters with pumpkin heads are common in other creative works, particularly related to Halloween and horror, that far predate Geiler's dance, and argues that the outfit he wore in his dance isn't "substantially similar" to Fortnite's Pump It Up emote anyway: The facial features are different, and none of the avatars whose heads can be temporarily replaced with the pumpkin wear a black unitard. 

Interestingly, the suit also states that Geiler cannot claim that Epic is using his likeness without authorization, because Geiler "already granted Epic Games a license to the 'character,' the Video, and the content therein." As noted by Polygon, Geiler himself has previously confirmed this in a Facebook comment and a MEL Magazine story.

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The suit seeks a declaratory judgment for non-infringement—basically, Epic wants the court to declare that it's not breaking any rules up front, before Geiler even files a suit—and also asks for legal fees, expenses, and "other, further, and different relief as the Court deems just and proper." That would seem to put the pressure on Geiler: If he doesn't back off, and Epic is granted the judgment, it could end up costing him.

Earlier this year, several lawsuits related to Fortnite dances were dropped (opens in new tab) following a US Supreme Court decision that changed how copyright lawsuits are filed. Prior to that, a lawsuit filed by former Fresh Prince of Bel Air star Alfonso Ribeiro over Epic's use of "The Carlton" dance ran aground (opens in new tab) when the US Copyright Office rejected his attempt to copyright what it described as "a simple dance move."

Andy has been gaming on PCs from the very beginning, starting as a youngster with text adventures and primitive action games on a cassette-based TRS80. From there he graduated to the glory days of Sierra Online adventures and Microprose sims, ran a local BBS, learned how to build PCs, and developed a longstanding love of RPGs, immersive sims, and shooters. He began writing videogame news in 2007 for The Escapist and somehow managed to avoid getting fired until 2014, when he joined the storied ranks of PC Gamer. He covers all aspects of the industry, from new game announcements and patch notes to legal disputes, Twitch beefs, esports, and Henry Cavill. Lots of Henry Cavill.