Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 1 of 34
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`Dale M. Cendali
`Joshua L. Simmons
`Shanti Sadtler Conway
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`Telephone: (212) 446-4800
`Facsimile: (212) 446-6460
`dale.cendali@kirkland.com
`joshua.simmons@kirkland.com
`shanti.conway@kirkland.com
`
`Megan L. McKeown
`KIRKLAND & ELLIS LLP
`609 Main Street
`Houston, TX 77002
`Telephone: (713) 836-3600
`Facsimile: (713) 836-3601
`megan.mckeown@kirkland.com
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`Attorneys for Plaintiff Epic Games, Inc.
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`EPIC GAMES, INC.,
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`
`
`Plaintiff,
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`Case No. 19-cv-11215
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`
`ECF Case
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`JURY TRIAL DEMANDED
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`SICK PICNIC MEDIA, LLC and MATTHEW F.
`GEILER,
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`- against -
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`Defendants.
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`COMPLAINT FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT
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`Plaintiff Epic Games, Inc. (“Epic Games”), by and through its attorneys, Kirkland & Ellis
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`LLP, for its Complaint, hereby alleges against Defendants Sick Picnic Media, LLC (“Sick
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`Picnic”) and Matthew F. Geiler (“Geiler”) (collectively, “Defendants”) as follows:
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 2 of 34
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`NATURE OF THE ACTION
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`Epic Games has been forced to bring this action seeking a declaration that,
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`1.
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`contrary to infringement claims asserted by Defendants, the Pump It Up Emote in Epic Games’
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`fantastical, multiplayer video game, Fortnite, does not infringe their copyright or trademark
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`rights.
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`2.
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`Fortnite is set in a fictional world in which players, represented by original
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`characters of various genders, ethnicities, and species, compete in a battle royale with a variety
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`of accessories and weapons. The players choose how their in-game characters look and move,
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`including by selecting short, pre-programmed movements that allow the player to express his or
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`her emotions in the game or to taunt other players. These are known as emotes.
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`3.
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`This case concerns one of those emotes: a Halloween-themed emote called “Pump
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`It Up” that Epic Games made available for a single day shortly before Halloween in the fall of
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`2019 as part of its annual Fortnitemares event (the “Pump It Up Emote”). In the Pump It Up
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`Emote, the avatar performs a brief dance to a Halloween-themed song developed by Epic Games
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`while the head of whatever avatar the player has selected is transformed into a jack-o’-lantern
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`face designed by Epic Games. The jack-o’-lantern face has moving green flames pouring from
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`the eyes, nose and mouth, a broad, grinning mouth, a long, prominent stem that curves, and dark
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`striations delineating the segments of the pumpkin giving it a yellow-and-orange design. The
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`Pump It Up Emote can be performed by any avatar in the game, including fantastically dressed
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`male avatars, female avatars, and avatars of other species.
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`4.
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`Defendants have alleged that the Pump It Up Emote infringes their copyright to a
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`“character,” which they refer to as the “Dancing Pumpkin Man,” that appeared in a video in
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`which Defendant Geiler is dressed in a plain black unitard he did not make, wearing as a mask a
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 3 of 34
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`jack-o’-lantern decoration he did not create, dancing to a song he did not write in front of a static,
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`generic graveyard image (the “Video”). A true and correct copy of the Video is attached hereto
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`as Exhibit 1. There is no infringement here, however, as Defendants do not own a protectable
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`character and the jack-o’-lantern-headed figures are in any case not substantially similar as a
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`matter of law. Defendants’ alleged “character” is not protectable as it is not “sufficiently
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`delineated” as a matter of law. Rather, it is simply the idea of an ordinary jack-o’-lantern head
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`on a non-descript, plain black unitard body. This does not rise to the level of specificity needed,
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`as a matter of law, to create a copyrightable character.
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`5.
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`Moreover, Defendants did not create the attributes of that alleged “character,” and
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`thus they cannot own a copyright to them. Defendants have admitted that Geiler did not create
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`the face of the jack-o’-lantern—rather he took a preexisting, third-party Halloween jack-o’-
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`lantern decoration from his company’s holiday lobby display and fashioned it into a mask. Nor
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`did Geiler create the simple black unitard.
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`6.
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`In any case, these preexisting materials are not substantially similar to Fortnite’s
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`Pump It Up Emote. In contrast to Fortnite’s Pump It Up Emote, the Defendants’ alleged
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`character’s jack-o’-lantern face has a narrower mouth and a smaller aperture to the eyes and
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`nose, there are no moving green flames shining through the holes, its jack-o’-lantern head is
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`smaller than Fortnite’s Pump It Up Emote and is a uniform orange color, as opposed to a
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`striated, yellow-and-orange-toned design. The stem on Defendants’ jack-o’-lantern is smaller
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`than the stem in the Pump It Up Emote. The bodies and costumes of the figures are also not
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`substantially similar. The body of Defendants’ alleged “character” is an ordinary man in a plain
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`black unitard. Fortnite has over 200 avatars (including female avatars and avatars of other
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`species) whose heads can be briefly replaced by the Pump It Up Emote—none of these avatars’
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 4 of 34
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`bodies wear a plain black unitard. Nor is the music used in the Video the same music as used in
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`the Pump It Up Emote. A comparison of the Defendants’ alleged “character” with multiple
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`examples of Fortnite avatars performing the Pump It Up Emote is shown below:
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`The Video
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`The Pump It Up Emote
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`7.
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`Defendants’ trademark claims similarly fail because symbols may serve as
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`trademarks only where used in commerce to identify the source or origin of a product or service.
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`They also must be distinctive for such product or service—the Dancing Pumpkin Man is none of
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`these things. Moreover, the First Amendment protects expressive works like Fortnite’s Pump It
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`Up Emote, as Epic Games’ use is artistically relevant because it allows Fortnite players to
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`express themselves during gameplay using a culturally-relevant reference to Halloween, as part
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`of Fortnite’s Halloween-themed Fortnitemares event, and the use is not explicitly misleading.
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`Nor does the Pump It Up Emote create a likelihood of confusion as to source, affiliation, or
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`sponsorship with Defendants or their claimed trademark.
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`8.
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`Moreover, as discussed
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`in detail below, Defendants’ claims also are
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`fundamentally flawed as no protectable elements of the Video, or any “character,” have been
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`used in Fortnite without Defendants’ authorization. This is because Defendants already granted
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`Epic Games a license to the “character,” the Video and the content therein.
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 5 of 34
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`9.
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`As Defendants have refused to accept these fundamental intellectual property
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`principles, Epic Games brings this action to clarify the parties’ rights and seeks a declaratory
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`judgment that the Pump It Up Emote does not infringe any copyright or trademark rights held by
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`Defendants.
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`THE PARTIES
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`Plaintiff Epic Games, Inc. is a Maryland corporation having its principal place of
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`10.
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`business in North Carolina. It is a multinational publisher, developer, and distributor of video
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`games and software, including Fortnite.
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`11.
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`Upon information and belief, Defendant Sick Picnic Media, LLC is a Nebraska
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`limited liability company registered to do business and having offices in Omaha, Nebraska.
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`12.
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`Upon information and belief, Sick Picnic serves as Geiler’s agency for
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`professional contracting and licensing of Geiler’s live entertainment performances.
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`13.
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`Defendant Matthew F. Geiler is an individual who, upon information and belief,
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`is the CEO and owner of Sick Picnic and resides in the State of Nebraska.
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`JURISDICTION AND VENUE
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`This is an action arising under the Declaratory Judgment Act, 28 U.S.C. §§ 2201
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`14.
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`and 2202, the Copyright Act, 17 U.S.C. § 101 et seq., and the Lanham Act, 15 U.S.C. § 1051 et
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`seq.
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`15.
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`This Court has subject matter jurisdiction under 28 U.S.C. §§ 2201 and 2202
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`because there is a substantial and concrete controversy between the parties of sufficient
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`immediacy that warrants a declaratory judgment. This Court has jurisdiction over this matter
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`pursuant to 15 U.S.C. § 1121, 28 U.S.C. §§ 1331 and 1338 in that this matter involves an action
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`arising under the Copyright Act and the Lanham Act.
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 6 of 34
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`16.
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`The Court has personal jurisdiction over Defendants and venue is proper in this
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`District because Defendants consented to personal jurisdiction and venue in New York via the
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`forum selection clause contained in the agreement that they entered into with Epic Games
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`concerning the Video and the Pump It Up Emote (the “License”), which provides that the
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`“parties hereby consent to the jurisdiction of the state and federal courts of general jurisdiction
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`located within New York County, New York for the resolution of disputes arising out of or
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`relating to this agreement.” This dispute arises out of or relates to the License, a true and correct
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`copy of which is attached hereto as Exhibit 2. Moreover, numerous consumers in New York
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`have downloaded and played Fortnite, including the Pump It Up Emote. Epic Games also has
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`held Fortnite tournaments in New York, New York, including the Fortnite World Cup.
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`ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF
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`Plaintiff and Its Fortnite Video Game Series
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`17.
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`Fortnite was released in the United States on July 25, 2017 for Windows and on
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`September 26, 2017 for PlayStation 4 and Xbox One. A true and correct copy of Fortnite is
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`attached hereto as Exhibit 3.1
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`18.
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`19.
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`Fortnite is a creative work.
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`Fortnite reflects creative choices in, among other things, its characters, setting,
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`plot, graphics, animations, music, dialogue, and other expressive elements.
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`20.
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`Fortnite is composed of a single-player or cooperative “Save the World” mode, a
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`multiplayer “Battle Royale” mode, and a “Creative” sandbox mode.
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`21.
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`Epic Games periodically releases updates to Fortnite, including releases of new
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`“Seasons” of the game, as well as limited availability features within the game. The release of a
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`1 Epic Games has attached the Xbox One version of Fortnite to this Complaint. For the convenience of the
`Court, Epic Games also will make an Xbox One console available to the Court upon request.
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 7 of 34
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`new “Season” and its content often reflect the time of year and holidays occurring
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`simultaneously in real life. For example, Chapter 1 Season 7 of Fortnite, which was available
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`between December 2018 and February 2019, was winter themed and included snow, a large
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`iceberg dubbed “Polar Peak,” and features in the game map that celebrated the “Festivus”
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`holiday. Each Season contains new items and game rewards that players may be able to obtain.
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`22.
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`Fortnite is a game where up to 100 players—alone, in pairs, or groups—compete
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`to be the last player or group alive. Fortnite features an extensive world in which players
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`explore, build, and destroy, and also battle against each other via player-to-player combat. At
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`the beginning of each round of Fortnite’s “battle royale,” each player is dropped onto Fortnite’s
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`sprawling map by a purple flying school bus called the “Battle Bus” after which they float down
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`to earth with the help of a hang glider or a large metal umbrella. Once aground, the players’
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`avatars explore the map’s various areas—which may include a megamall, a volcano, and floating
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`sky platforms—while scavenging for weapons and supplies, building fortifications, setting traps,
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`and using launch pads to soar through the air and move quickly from one location to another. As
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`the round progresses, the map shrinks down in size due to an incoming storm, forcing the players
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`to move closer together and accelerating the confrontations between them. The winner is the last
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`player or team standing in each game.
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`Fortnite’s Avatar Customizations
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`23.
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`Before a game begins, players may select an avatar or “skin.” Fortnite’s avatars,
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`or “skins,” are all fanciful, fictional characters: some have non-human features (such as a tomato
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`head or a giant banana with arms, legs, and a face); others are more human and follow certain
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`fictional tropes (such as a soldier or gunslinger). There are over 200 player skins.
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`24.
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`Examples of player “skins” are shown below.
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 8 of 34
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`25.
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`There is no avatar “skin” in Fortnite that consists of a man (woman or other
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`figure) wearing a plain black unitard.
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`26.
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`Players cannot alter the “skin” of their avatars. Accordingly, an avatar’s
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`appearance cannot be modified to look like any particular person.
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`Fortnite’s Emotes
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`27.
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`A Fortnite player also can customize his or her game experience with a variety of
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`“emotes,” which are movements or short dance steps that a player may choose to have his or her
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`avatar perform during gameplay to express emotions or interact with other players, such as
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`celebrating a victory on the battlefield or taunting an opponent.
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`28.
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`Emotes in Fortnite are triggered by the players of the game with a button press or
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`keyboard shortcut. Upon triggering an emote, an avatar will perform a short movement or
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`combination of dance steps. Emotes are often accompanied by a brief piece of music that lasts
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`for the duration of the emote.
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`29.
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`There have been over 200 emotes available to players since Fortnite was released
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`in 2017, including the “Snap” emote, the “Golf Clap” emote, the “Time Out” emote, and, at issue
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`in this lawsuit, the Pump It Up Emote.
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`30.
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`The Pump It Up Emote, as with all emotes in Fortnite, can be used with any
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`avatar, without regard to the avatar’s appearance.
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 9 of 34
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`31.
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`Emotes in general, and the Pump It Up Emote in particular, are a tiny aspect of
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`Fortnite and incidental to overall game play.
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`32.
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`A player may play Fortnite without downloading or using any emotes, including
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`the Pump It Up Emote.
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`The Pump It Up Emote
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`33.
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`The Pump It Up Emote was available to download for a single day between
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`October 29, 2019 and October 30, 2019 during Chapter 2, Season 1 of Fortnite.
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`34.
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`The Pump It Up Emote was released as part of Fortnite’s annual Fortnitemares
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`2019 event, which included limited-time game features that relate to Halloween.
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`35.
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`The Pump It Up Emote causes an avatar to perform a set of movements, which are
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`not at issue in this dispute. It is accompanied by original music developed by Epic Games,
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`which also is not at issue here.
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`36.
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`As shown below, the Pump It Up Emote causes a jack-o’-lantern to appear in
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`place of the avatar’s head while the player’s avatar performs certain movements:
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 10 of 34
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`37.
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`The jack-o’-lantern head in the Pump It Up Emote has triangles for the eyes and
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`nose, and a broad, grinning smile.
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`38.
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`Through the carved openings of the Pump It Up Emote’s jack-o’-lantern, moving
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`green flames appear.
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`39.
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`The jack-o’-lantern head in the Pump It Up Emote has darkened striations giving
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`it a yellow-and-orange-toned design.
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`40.
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`The jack-o’-lantern head in the Pump It Up Emote has a long, pronounced stem
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`that curves.
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`41.
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`The Pump It Up Emote’s jack-o’-lantern is an original design created by Epic
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`Games.
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`42.
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`Performing the Pump It Up Emote does not change the avatar’s appearance aside
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`from the addition of a jack-o’-lantern head.
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`43.
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`Performing the Pump It Up Emote does not cause the avatar to wear a black
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`unitard.
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`44.
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`No avatar in Fortnite wears a plain black unitard.
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 11 of 34
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`45.
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`The Pump It Up Emote can be used with any avatar, without regard to appearance
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`or any particular likeness.
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`The Marketing for Fortnite
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`46.
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`The marketing and promotion of Fortnite indicates that the source of the video
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`game is Epic Games.
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`47.
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`For example, Fortnite’s product packaging for the Xbox One game displays Epic
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`Games’ trademarks and logos, as shown below.
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`48.
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`Similarly, Fortnite’s product page in the Epic Games Store states that Epic Games
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`is the developer and publisher of Fortnite and displays Epic Games’ trademarks and logos. A
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`true and correct copy of Fortnite’s product page in the Epic Games Store is attached hereto as
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`Exhibit 4.
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`49.
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`The Fortnite product page in the PlayStation Games Store indicates that Epic
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`Games is the source of Fortnite. A true and correct copy of the Fortnite product page in the
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`PlayStation Games Store is attached hereto as Exhibit 5.
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 12 of 34
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`50.
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`The Fortnite product page in the Microsoft Store for Xbox One indicates that
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`Epic Games is the source of Fortnite. A true and correct copy of the Fortnite product page in the
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`Microsoft Store for Xbox One is attached hereto as Exhibit 6.
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`51.
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`Epic Games has released a variety of trailers for Fortnite. In particular, Fortnite
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`has a cinematic “launch” trailer to promote the recent release of “Chapter 2” of the game (the
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`“Launch Trailer”). The Launch Trailer prominently displays Epic Games’ trademarks and logos,
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`as shown in the screenshot below. A true and correct copy of the Launch Trailer is attached
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`hereto as Exhibit 7.
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`52.
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`Fortnite also has a trailer to promote the Battle Pass for Chapter 2, Season 1 of
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`the game (the “Battle Pass Trailer”). The Battle Pass Trailer prominently displays Epic Games’
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`trademarks and logos, as shown in the screenshot below. A true and correct copy of the Battle
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`Pass Trailer is attached hereto as Exhibit 8.
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`53.
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`Fortnite also has a trailer to promote its seasonal Fortnitemares event for
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`Halloween, which launched on October 29, 2019 (the “Fortnitemares Trailer”). The
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`Fortnitemares Trailer depicts Halloween-themed characters and prominently displays Epic
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`Games’ trademarks and logos. It does not include the Pump It Up Emote. A true and correct
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`copy of the Fortnitemares Trailer is attached hereto as Exhibit 9.
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`Defendants and Their Claimed “Dancing Pumpkin Man” Character
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`54.
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`Upon information and belief, from approximately September 2006 to August
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`2008, Geiler was an anchor for a 10 o’clock nightly newscast at the Omaha, Nebraska CW
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`affiliate, KXVO. In this role, Geiler was responsible for filling airtime with content, which in
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`various instances went beyond providing news updates.
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`55.
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`Upon information and belief, Defendants’ alleged “character” first appeared in the
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`Video, which was posted on the KXVO 10:00 News’ YouTube channel on November 2, 2006
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`under the title “KXVO Pumpkin Dance.”
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`56.
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`Upon information and belief, Geiler is the performer who appears in the Video.
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`57.
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`Upon information and belief, and as shown in the screenshot below, Geiler dances
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`in the Video in front of a static cemetery image while wearing a generic jack-o’-lantern mask and
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`a plain black unitard. Geiler dances to The Music Makers’ song “Cazafantasmas” from the film
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`Ghostbusters.
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`58.
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`Upon information and belief, the jack-o’-lantern mask in the Video is a
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`preexisting Halloween decoration that Geiler found among the holiday decorations in the lobby
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`of his news station and that he fashioned into a makeshift mask. A true and correct copy of a
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`transcript from a radio interview in which Geiler discusses the origin of the jack-o’-lantern mask
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`is attached hereto as Exhibit 10.
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`59.
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`Upon information and belief, the jack-o’-lantern decoration that Geiler wears as a
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`mask in the Video differs from the jack-o’-lantern head in the Pump It Up Emote because it has a
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`narrower mouth and a smaller aperture to the eyes and nose, there are no moving green flames
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`shining through the holes, its jack-o’-lantern head is smaller, and the mask is a uniform orange
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`color.
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`60.
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`Upon information and belief, Geiler did not create the jack-o’-lantern decoration
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`or black unitard that he wears in the Video.
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`61.
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`Upon information and belief, Defendants do not use the jack-o’-lantern mask,
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`black unitard, or the alleged Dancing Pumpkin Man character as a trademark.
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`There Are Numerous Jack-o’-Lantern Head Characters That Pre-Date Defendants’
`Alleged Dancing Pumpkin Man Character
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`62.
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`The idea of a figure with a jack-o’-lantern head is not unique or original to
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`Defendants.
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`63.
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`64.
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`Jack-o’-lanterns are commonly associated with Halloween.
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`There are numerous examples of works that incorporate a character with a jack-
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`o’-lantern head that pre-date Defendants’ alleged Dancing Pumpkin Man character in the 2006
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`Video. Examples of such third party uses are listed below.
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`65.
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`The 1904 children’s novel The Marvelous Land of Oz featured the character Jack
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`Pumpkinhead, which also subsequently appeared in the 1994 Oz comic book series. An image of
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`the Jack Pumpkinhead character is shown below:
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`66.
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`In 1949, Disney released an animated adaptation of the classic, The Legend of
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`Sleepy Hollow, which depicted the iconic Headless Horseman holding a jack-o’-lantern to
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`represent his head. An image of the Headless Horseman character is shown below:
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`67.
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`Jack O’Lantern from Marvel Comics’ Spider-Man and Civil War series first
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`appeared in 1981. An image of the Jack O’Lantern character is shown below:
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`68. Merv Pumpkinhead, a recurring character in Neil Gaiman’s The Sandman comic
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`book series, first appeared in 1989. An image of the Merv Pumpkinhead character is shown
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`below:
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`69.
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`Lord Pumpkin from the Ultraverse line of superhero comics from Malibu Comics
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`first appeared in 1993. An image of the Lord Pumpkin character is shown below:
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`70.
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`The Nightmare Before Christmas, which included The Pumpkin King character,
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`was released in 1993. An image of The Pumpkin King character is shown below:
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 18 of 34
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`71.
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`The book Attack of the Jack-O’-Lanterns, a novel in the Goosebumps series, was
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`published in 1996 and includes characters known as the “Pumpkin Heads.” An image of these
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`characters is shown below:
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`72.
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`Stingy Jack from Irish folklore, which is regarded as one of the origins of
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`decorating jack-o’-lanterns, also has featured a figure with a jack-o’-lantern for a head and long
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`pre-dates Defendants’ character. Although Stingy Jack has been depicted over time by different
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`artists in different ways, the character frequently has a jack-o’-lantern head, as shown below:
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 19 of 34
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`Fortnite and Its Marketing Do Not Depict the Alleged Dancing Pumpkin Man Character or
`Reference Defendants
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`73.
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`Defendants’ only basis for claiming that Fortnite infringes his intellectual
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`property rights is Fortnite’s use of a jack-o’-lantern head with the Pump It Up Emote.
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`74.
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`The Pump It Up Emote does not depict the same jack-o’-lantern mask worn in the
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`Video.
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`75.
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`76.
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`77.
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`78.
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`the Video.
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`79.
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`80.
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`81.
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`82.
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`Man.”
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`Fortnite does not depict the same jack-o’-lantern mask worn in the Video.
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`The Pump It Up Emote does not depict the black unitard worn in the Video.
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`Fortnite does not depict the black unitard worn in the Video.
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`The Pump It Up Emote does not depict the same cemetery scene that appears in
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`Fortnite does not depict the same cemetery scene that appears in the Video.
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`The Pump It Up Emote does not depict Geiler.
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`Fortnite does not depict Geiler.
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`The Pump It Up Emote does not reference Defendants or “Dancing Pumpkin
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`83.
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`Fortnite does not reference Defendants or “Dancing Pumpkin Man.”
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`19
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 20 of 34
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`84.
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`The Pump It Up Emote does not include the song “Cazafantasmas” by The Music
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`Makers.
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`85.
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`86.
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`87.
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`Fortnite does not include the song “Cazafantasmas” by The Music Makers.
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`The License allows Epic Games to use the choreography in the Video in Fortnite.
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`Fortnite’s product packaging for the Xbox One game does not depict the jack-o’-
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`lantern mask worn by the alleged Dancing Pumpkin Man character in the Video.
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`88.
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`Fortnite’s product packaging for the Xbox One game does not depict the Pump It
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`Up Emote.
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`89.
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`Fortnite’s product packaging for the Xbox One game does not depict the black
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`unitard worn by the alleged Dancing Pumpkin Man character in the Video.
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`90.
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`Fortnite’s product packaging for the Xbox One game does not depict the
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`cemetery scene that appears in the Video.
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`91.
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`92.
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`Fortnite’s product packaging for the Xbox One game does not depict Geiler.
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`Fortnite’s product packaging for the Xbox One game does not reference
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`Defendants or “Dancing Pumpkin Man.”
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`93.
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`Fortnite’s product page in the Epic Games Store does not depict the Pump It Up
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`Emote.
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`94.
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`Fortnite’s product page in the Epic Games Store does not depict the jack-o’-
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`lantern mask worn by the alleged Dancing Pumpkin Man character in the Video.
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`95.
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`Fortnite’s product page in the Epic Games Store does not depict the black unitard
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`worn by the alleged Dancing Pumpkin Man character in the Video.
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`96.
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`Fortnite’s product page in the Epic Games Store does not include the song
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`“Cazafantasmas” by The Music Makers.
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 21 of 34
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`97.
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`Fortnite’s product page in the Epic Games Store does not depict the cemetery
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`scene that appears in the Video.
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`98.
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`99.
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`Fortnite’s product page in the Epic Games Store does not depict Geiler.
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`Fortnite’s product page in the Epic Games Store does not reference Defendants or
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`“Dancing Pumpkin Man.”
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`100. Fortnite’s product page in the PlayStation Games Store does not depict the Pump
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`It Up Emote.
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`101. Fortnite’s product page in the PlayStation Games Store does not depict the jack-
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`o’-lantern mask worn by the alleged Dancing Pumpkin Man character in the Video.
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`102. Fortnite’s product page in the PlayStation Games Store does not depict the black
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`unitard worn by the alleged Dancing Pumpkin Man character in the Video.
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`103. Fortnite’s product page in the PlayStation Games Store does not include the song
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`“Cazafantasmas” by The Music Makers.
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`104. Fortnite’s product page in the PlayStation Games Store does not depict the
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`cemetery scene that appears in the Video.
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`105. Fortnite’s product page in the PlayStation Games Store does not depict Geiler.
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`106. Fortnite’s product page in the PlayStation Games Store does not reference
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`Defendants or “Dancing Pumpkin Man.”
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`107. Fortnite’s product page in the Microsoft Store for Xbox One does not depict the
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`Pump It Up Emote.
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`108. Fortnite’s product page in the Microsoft Store for Xbox One does not depict the
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`jack-o’-lantern mask worn by the alleged Dancing Pumpkin Man character in the Video.
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`21
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 22 of 34
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`109. Fortnite’s product page in the Microsoft Store for Xbox One does not depict the
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`black unitard worn by the alleged Dancing Pumpkin Man character in the Video.
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`110. Fortnite’s product page in the Microsoft Store for Xbox One does not include the
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`song “Cazafantasmas” by The Music Makers.
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`111. Fortnite’s product page in the Microsoft Store for Xbox One does not depict the
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`cemetery scene that appears in the Video.
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`112. Fortnite’s product page in the Microsoft Store for Xbox One does not depict
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`Geiler.
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`113. Fortnite’s product page in the Microsoft Store for Xbox One does not reference
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`Defendants or “Dancing Pumpkin Man.”
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`114. Fortnite’s Launch Trailer does not depict the Pump It Up Emote.
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`115. Fortnite’s Launch Trailer does not depict the jack-o’-lantern mask worn by the
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`alleged Dancing Pumpkin Man character in the Video.
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`116. Fortnite’s Launch Trailer does not depict the black unitard worn by the alleged
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`Dancing Pumpkin Man character in the Video.
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`117. Fortnite’s Launch Trailer does not include the song “Cazafantasmas” by The
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`Music Makers.
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`118. Fortnite’s Launch Trailer does not depict the cemetery scene that appears in the
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`Video.
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`119. Fortnite’s Launch Trailer does not depict Geiler.
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`120. Fortnite’s Launch Trailer does not reference Defendants or “Dancing Pumpkin
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`Man.”
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`121. The Battle Pass Trailer does not depict the Pump It Up Emote.
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`22
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 23 of 34
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`122. The Battle Pass Trailer does not depict the jack-o’-lantern mask worn by the
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`alleged Dancing Pumpkin Man character in the Video.
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`123. The Battle Pass Trailer does not depict the black unitard worn by the alleged
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`Dancing Pumpkin Man character in the Video.
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`124. The Battle Pass Trailer does not include the song “Cazafantasmas” by The Music
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`Makers.
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`125. The Battle Pass Trailer does not depict the cemetery scene that appears in the
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`Video.
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`126. The Battle Pass Trailer does not depict Geiler.
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`127. The Battle Pass Trailer does not reference Defendants or “Dancing Pumpkin
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`Man.”
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`128. The Fortnitemares Trailer does not depict the Pump It Up Emote.
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`129. The Fortnitemares Trailer does not depict the jack-o’-lantern mask worn by the
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`alleged Dancing Pumpkin Man character in the Video.
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`130. The Fortnitemares Trailer does not depict the black unitard worn by the alleged
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`Dancing Pumpkin Man character in the Video.
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`131. The Fortnitemares Trailer does not include the song “Cazafantasmas” by The
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`Music Makers.
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`132. The Fortnitemares Trailer does not depict the cemetery scene that appears in the
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`Video.
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`133. The Fortnitemares Trailer does not depict Geiler.
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`134. The Fortnitemares Trailer does not reference Defendants or “Dancing Pumpkin
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`Man.”
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`23
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`Case 1:19-cv-11215-PGG Document 1 Filed 12/06/19 Page 24 of 34
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`The Video and Defendants’ Alleged Dancing Pumpkin Man Character Is Different From
`Fortnite
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`135. Fortnite’s plot is a battle royale game where players compete to be the last player
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`alive.
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`136. The setting of Fortnite is a game map with various areas for game players to
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`battle, including but not limited to a neighborhood of houses, a swamp, a lake, retail stores, a
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`shipyard, a farm, and a beach.
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`137. Fortnite’s mood changes depending on the Season of the game, the game mode,
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`and the player’s location on the game map.
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`138. Fortnite’s pace is relatively fast.
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`139. Fortnite’s themes are fantasy and warfare.
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`140. Fortnite’s sequence of events involves air dropping from the flying “Battle Bus,”
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`floating down to earth with the help of a hang glider or a large metal umbrella, a search for
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`weapons and resources using tools called “pickaxes,” and a game arena with an incoming storm
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`which causes the map to shrink in size and bring players closer together to battle. The winner is
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`the last player or team standing in each game.
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`141. Fortnite has over 200 fanciful avatar characters.
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`142. Fortnite does not include The Music Makers’ song “Cazafantasmas” from the
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`film Ghostbusters.
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`143. Fortnite does not include a static cemetery backdrop.
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`144. The Pump It Up Emote does not include a static cemetery backdrop.
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`145. The Pump It Up Emote can be used with male avatars that are wear