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Keywords

motiontrademarkmotion to dismiss

plaintiffdefendantmotiontrademarkmotion to dismiss

Related Cases

Pellegrino v. Epic Games, Inc., 451 F.Supp.3d 373

Facts

Leo Pellegrino, a professional saxophone player, created a unique dance known as the 'Signature Move' that he performed during his musical acts. Epic Games, the developer of Fortnite, included an emote called 'Phone It In' in the game, which Pellegrino alleged was identical to his Signature Move and was sold without his consent. Pellegrino claimed that this use created a false impression that he endorsed the game, leading to the legal action against Epic.

Plaintiff Leo Pellegrino commenced this action against Defendant Epic Games, Inc. … Pellegrino incorporates and 'executes the Signature Move [in] every one of his musical performances.' … One of these emotes, the 'Phone It In' emote, 'is identical to Pellegrino's Signature Move.' … Epic thus uses Pellegrino's Signature Move embodied in the Phone It In emote to create the false impression that Pellegrino is endorsing the game.

Issue

Did Epic Games' use of Pellegrino's likeness in the 'Phone It In' emote violate Pellegrino's right to publicity and trademark rights under state and federal law?

Rule

The court applied the Transformative Use Test to determine whether Epic's use of Pellegrino's likeness was sufficiently transformative to warrant First Amendment protection, and assessed claims under the Lanham Act for false designation of origin and false endorsement.

Analysis

The court found that Epic's use of Pellegrino's likeness in the 'Phone It In' emote was transformative because the Fortnite avatars did not closely resemble Pellegrino and did not perform in the same context as Pellegrino's performances. However, the court allowed the false endorsement claim to proceed, as Pellegrino's allegations suggested that Epic's use of his likeness created a false impression of endorsement.

Conclusion

The court granted Epic's motion to dismiss in part, concluding that Pellegrino's right to publicity claims were barred by the First Amendment, but denied the motion regarding Pellegrino's false endorsement claim under the Lanham Act.

Who won?

Epic Games prevailed on most claims, as the court found that their use of Pellegrino's likeness was transformative and protected by the First Amendment.

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