Nike vs StockX lawsuit. Fortnite sued for copyright infringement

STOCKX - NIKE

Last February, Nike sued the e-commerce platform StockX for selling NFTs of Nike’s shoes. As explained in our previous article, StockX created its Vault NFTs, featuring digital Nike footwear. When purchasing the NFT, customers were also acquiring the real version of Nike’s shoes, which was kept by StockX. The NFT conferred an ownership title to the holder, allowing transactions among users, and granted exclusive advantages to the right holder. 

Moreover, the NFT could be exchanged in every moment with the physical item upon customer’s request. 

However, Nike filed the lawsuit alleging that the fact of selling NFT with the company’s logo on it, as well as the real footwear, since it might create a false association between the NFT and Nike. As a consequence, it could be misleading for consumers make them believe that these items were authorised by Nike, thus causing dilution to Nike’s trade marks.

In response to Nike’s lawsuit, StockX claims that Nike has shown a “fundamental misunderstanding” of their NFTs. StockX argues that they were not selling virtual products as such, since consumers were acquiring the real version of the shoes. The defendant compared the NFT to the images of products that can be found in retail marketplaces that use the image of Nike’s shoes to sell real footwear. 

Nike has launched some branded NFTs together with the platform RTFKT, but has not released yet its own NFTs. 

FORTNITE 

Epic Games, the video game and software developer of Fortnite, has been sued by the professional choreographer Kyle Hanagami. 

Fortnite launched in August 2020 the emote “It’s complicated”, which allegedly replicated the copyrighted dance moves from a 2017 choreography of Hanagami, without giving credit to the author, nor a compensation. 

In a nutshell, “emotes” are short actions or movements that the players’ characters can perform. Those extra items can be either purchased at Fortnite’s shop or obtained in the course of the game.

The emote’s dance routine included very similar moves to the ones of the real videoclip (available here), whereby the author of the choreography decided to sue Epic Games. 

The lawsuit stated that Epic Games “did not credit Hanagami nor seek his consent to use, display, reproduce, sell, or create a derivative work based on the Registered Choreography”. 

Moreover, the author requested the removal of the emote from the video game and a compensation in relation to the revenues obtained by Fortnite.  

It is not the first time that Fortnite experienced copyright infringement claims, involving dance creations. As an example, Alfonso Ribeiro (from the tv show the Fresh Prince) and the rapper 2 Milly claimed that Fortnite’s characters were using their dancing sequence without any authorisation, but their request did not succeed. The Court, concluded that only complex series of movements can be registered at the USPTO, and the registration needs to be effective before suing for copyright infringement. 

In this case, Hanagami’s choreography was registered.