Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 1 of 29 Page ID #:1

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Pierce Bainbridge Beck Price & Hecht LLP
Carolynn Kyungwon Beck (SBN 264703)
Daniel Dubin (SBN 313235)
600 Wilshire Boulevard, Suite 500
Los Angeles, California 90017-3212
(213) 337-0065
Attorneys for Plaintiffs

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THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

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Complaint for:

Plaintiffs,

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Case No.

Anita Redd, on behalf of her
minor son, Russell Horning,
also known as Backpack Kid;
and RH Performer, LLC, a
Georgia limited liability
company

v.
Epic Games, Inc., a North
Carolina corporation; and
Does 1 through 50, inclusive,
Defendants.

1. Direct Infringement of
Copyright;
2. Contributory Infringement
of Copyright;
3. Violation of the Right of
Publicity under California
Common Law;
4. Violation of the Right of
Publicity under Cal. Civ.
Code § 3344;
5. Unfair Competition under
Cal. Bus. & Prof. Code §
17200, et seq.;
6. False Designation of Origin
under 15 U.S.C. § 1125(a);
7. Trademark Infringement
under California Common
Law;
8. Trademark Infringement
under 15 U.S.C. § 1125(a);
9. Trademark Dilution under
15 U.S.C. § 1125(c)
Demand for Jury Trial

Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 2 of 29 Page ID #:2

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Plaintiffs Anita Redd, on behalf of her minor son, Russell Horning,

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also known as Backpack Kid (“Backpack Kid”), and RH Performer, LLC

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(collectively referred to as “Plaintiffs”), by and through their

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undersigned counsel, assert the following claims against Defendant

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Epic Games, Inc. (“Epic”) and Does 1 through 50 (collectively referred

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to as “Defendants”), and alleges as follows:

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I.

OVERVIEW

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Through its unauthorized misappropriation of Backpack

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Kid’s highly popular signature dance, the “Floss,” in its smash-hit,

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violent video game, Fortnite Battle Royale (“Fortnite”), Epic has

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unfairly profited from exploiting Backpack Kid’s protected creative

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expression, likeness, and Plaintiffs’ trademark without consent or

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authorization.

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Backpack Kid is a professional performer, who created the

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Floss dance in 2016, which exploded in popularity following his

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performance of the dance on Saturday Night Live on May 20, 2017,

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alongside Katy Perry. The Floss is now inextricably linked to Backpack

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Kid and has continued to be a part of his celebrity persona.

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Defendants capitalized on Backpack Kid’s celebrity and the

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Floss’s popularity, particularly with its younger fans, by selling the

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Floss as an in-game purchase in Fortnite as the “Floss” emote, which

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players can buy to customize their avatars for use in the game.

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Defendants did not credit Backpack Kid nor seek Plaintiffs’ consent to

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use, display, reproduce, sell, or create a derivative work based upon

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Backpack Kid’s Floss dance or likeness in Fortnite. Defendants also did

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not seek Plaintiffs’ consent to use the term “Floss” as the name for the

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emotes.

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Complaint

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Since being released in or around September 2017, Fortnite

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has become among the most popular video games ever with sales far in

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excess of $1 billion. Indeed, Fortnite made approximately $318 million

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in May 2018 alone, the “biggest month ever for a video game.” As a free-

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to-play game, Fortnite derives its sales from in-game purchases. Epic

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cannot profit from Backpack Kid’s hard-earned fame by its

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misappropriation of the Floss or Backpack Kid’s likeness. Epic cannot

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increase the value of its main product by faking endorsements by

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celebrities. Plaintiffs seeks injunctive relief and damages, including,

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but not limited to, Plaintiffs’ profits attributed to its misappropriation

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of the Floss and Backpack Kid’s likeness.

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II.

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THE PARTIES

Russell Horning resides in Lawrenceville, Georgia. He is
better known as the performer, Backpack Kid.

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Anita Redd, who brings this lawsuit on behalf of Backpack

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Kid, is Backpack Kid’s mother. Redd also resides in Lawrenceville,

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Georgia.

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RH Performer, LLC is a Georgia limited liability company

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with its principal place of business at 745 Dean Way, Lawrenceville, GA

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30044.

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registrations for the Floss dance.

RH Performer, LLC submitted applications for copyright

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Epic is a North Carolina business corporation with its

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principal place of business at 620 Crossroads Boulevard, Cary, NC

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27518. Epic is the creator and developer of the Fortnite video game

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franchise, which was first released in July 2017.

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The true names and identities of the defendants herein sued

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as Does 1 through 50, inclusive, are unknown to Plaintiffs, who

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therefore sue those defendants by such fictitious names. When the true
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Complaint

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names of those defendants have been ascertained, Plaintiffs will amend

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this complaint accordingly. Each of the defendants aided and abetted

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and is responsible in some manner for the occurrences herein alleged,

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and Plaintiff’s injuries were proximately caused thereby.

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At all times herein mentioned, each of the defendants was

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acting as an agent, servant, employee or representative of defendants,

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and, in doing the things alleged in this Complaint, was acting within

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the course and scope of that agency, service, employment, or joint

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venture.

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III. SUBJECT MATTER JURISDICTION AND

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VENUE

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The Court has subject matter jurisdiction over this action

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pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332

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(diversity), and 28 U.S.C. § 1367 (supplemental jurisdiction).

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Venue is proper in this District under A) 28 U.S.C. §

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1391(b)(2) (federal question jurisdiction), because a substantial part of

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the events or omissions giving rise to the claim occurred in this District;

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and B) 28 U.S.C. §§ 1391(b)(1) and (c) (personal jurisdiction), because

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all defendants are subject to personal jurisdiction in this State and at

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least one in this District.

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IV.FACTUAL BACKGROUND

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Backpack Kid and the Creation of the Floss

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Raised in the city of Lawrenceville, Georgia, Backpack Kid

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began gaining popularity in 2016 for posting videos of himself dancing

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on Instagram. Backpack Kid exploded in popularity after the world-

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famous singer, Rihanna, posted one of his videos; Backpack Kid gained

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55,000 followers on Instagram in two days after the Rihanna post.

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Complaint

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After obtaining widespread notoriety, Backpack Kid

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continued to post videos of himself dancing on Instagram. As part of

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his dances, Backpack Kid included his signature move that he originally

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called “The Russell.” Indeed, most of Backpack Kid’s videos included

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Backpack Kid performing The Russell either by himself or with others.

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Backpack Kid’s popularity further increased after his May

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20, 2017 Saturday Night Live performance with Katy Perry where he

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performed his signature dance. Katy Perry has stated that she invited

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Backpack Kid to perform with her after discovering Backpack Kid’s

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popular Instagram page. Fans began referring to Backpack Kid by his

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moniker after the Saturday Night Live performance because he

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performed the dance while wearing a backpack.

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Backpack Kid also performed his signature dance in Katy

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Perry’s 2017 “Swish Swish” music video, which was posted to YouTube

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on August 24, 2017.1 At the time of this filing, the Swish Swish music

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video has over 508 million views on YouTube.

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Since its creation in 2016 and its rise to fame soon after,

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Backpack Kid’s dance maintained its popularity. Videos of the dance,

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now known as the “Floss” or “Flossing,” gained widespread recognition

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and notoriety, particularly on social media. Hundreds of thousands of

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fans, including celebrities and athletes, have posted videos of

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themselves Flossing on social media.

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Backpack Kid has used and continues to successfully use the Floss

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commercially.

Sine the Floss’s creation,

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The Floss has become synonymous with Backpack Kid, who

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is unanimously credited with creating the dance. Backpack Kid is

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The video can be found at https://www.youtube.com/watch?v=iGk5fR-t5AU.
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Complaint

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constantly inundated with requests to perform the Floss; he has

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performed it on numerous occasions at the behest of both the public and

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celebrities, including at schools, companies, and other locations around

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the world. Accordingly, the Floss is a part of Backpack Kid’s celebrity

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identity and the dance’s unique movements readily evoke a connection

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to Backpack Kid. Plaintiffs also have copyrights in the Floss dance and

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trademark rights in the “Floss” and “Backpack Kid.”

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Fortnite: The Most Popular Video Game Ever

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Even prior to releasing Fortnite, which would become among

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the most popular and successful video games ever, Epic had already

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developed two popular video game franchises: Unreal and Gears of

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War. Since releasing the first Gears of War game in 2006, Epic released

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several subsequent Gears of War video games, and the franchise has

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made has made over $1 billion in total sales.

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In or around 2011, following the release of the third Gears

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of War installment, Fortnite began from an Epic internal video game

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“hackathon,” a gathering of Epic developers to brainstorm ideas and

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create games in a short period. Although the Fortnite game was not

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developed during the hackathon, the idea to merge building games (i.e.,

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Minecraft) and shooter games (i.e., Gears of War or Call of Duty)

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emerged during the hackathon.

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In or around July 2017, Epic released the initial version of

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Fortnite as a paid early-access video game. However, by September

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2017, after PlayerUnknown’s Battlegrounds—a game which occupied

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the same “battle royale” genre as Fortnite—became a worldwide

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success, Epic released Fortnite Battle Royale, a free-to-play battle

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royale third person shooting game on the Windows, macOS, PlayStation

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4 and Xbox One platforms. Epic subsequently released Fortnite on the
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Complaint

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iOS, Nintendo and Android platforms on April 2, 2018, June 12, 2018,

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and August 9, 2018, respectively.

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Similar

to

PlayerUnknown’s

Battlegrounds,

Fortnite

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utilizes the battle royale format where up to 100 players, alone, in pairs,

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or in groups, compete to be the last player or group alive. Indeed,

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similar to Battlegrounds and Gears of War, Fortnite features the use of

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weapons and violence, that players use to eliminate the competition by

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attacking and shooting them.

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As a free-to-play video game, Epic allows players to

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download and play Fortnite for free. Fortnite is supported by in-game

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transactions where players can purchase virtual currency, called

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“Vinderbucks” or “V-Bucks.”

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purchase customizations for their in-game avatars, including new

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characters, pickaxe modifications, glider skins, clothes, and emotes

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(dances or movements). Fortnite also sells “Battle Passes” or additional

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levels that allow you to unlock skins, gliders, and emotes unique to that

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Pass. Fortnite offers four pricing levels for purchasing V-Bucks:

The players in turn use V-Bucks to

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1) 1,000 V-Bucks for $9.99;

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2) 2,500 (+300 Bonus) V-Bucks for $24.99;

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3) 6,000 (+1,500 Bonus) V-Bucks for $59.99; or

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4) 10,000 (+3,500 Bonus) V-Bucks for $99.99.

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There are four types of emotes: common emotes, uncommon

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emotes, rare emotes, and epic emotes. The rarer the emote, the more

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expensive or harder it is to obtain. Uncommon emotes cost 200 V-

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Bucks. Rare emotes cost 500 V-Bucks. And Epic emotes cost 800 V-

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Bucks.

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To start, Fortnite provides each player with the Dance

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Moves emote, a common emote, for no compensation. Players can then
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Complaint

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obtain other emotes by purchasing and playing additional levels in

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Battle Passes (950 V-Bucks each) that come with emotes unique to that

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Pass, or by purchasing certain emotes directly with V-Bucks. On some

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occasions, Fortnite sells Battle Pass emotes directly, without requiring

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the player to purchase the Battle Pass.

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Emotes are incredibly popular and are fundamental to

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Fortnite’s success. Players purchase emotes, alongside clothing and

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skins, to personalize their Fortnite experience.

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become popular outside Fortnite. Professional athletes in soccer and

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other sports have based their celebrations on Fortnite emotes. Young

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adults, teenagers, and kids also post videos of themselves on YouTube

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and social media performing emotes under various hashtags, including

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#fortnitedance or #fortnitevideos.

Emotes have also

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Upon information and belief, Epic creates emotes by copying

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and coding dances and movements directly from popular videos, movies,

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and television shows without consent. Epic does so by coding still

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frames of the source material.

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Epic has copied the dances and movements of numerous

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performers, including, for example, the dance from the 2004 Snoop Dogg

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music video, “Drop It Like It’s Hot” (named the “Tidy” emote), Alfonso

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Ribeiro’s performance of his famous dance on The Fresh Prince of Bel-

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Air television show (named the “Fresh” emote), the dance performed by

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Will Smith on the same television show (named the “Rambunctious”

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emote), the dance in Marlon Webb’s popular “Band of the Bold” video

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(named the “Best Mates” emote), Donald Faison’s signature dance seen

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on the NBC television show Scrubs (named the “Dance Moves” emote),

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and 2 Milly’s “Milly Rock” dance (named the “Swipe It” emote).

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Complaint

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Moreover, Epic also misappropriated other popular dances,

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including Backpack Kid’s Floss dance. Upon information and belief,

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Epic did not seek consent or authorization to use any of these

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movements or dances.

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Soon after its release, Fortnite became an international

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phenomenon. The game eclipsed 10 million players merely two weeks

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after its release; 125 million players by July 2018. In November 2018,

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Bloomberg announced that Fortnite had 200 million player accounts

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across all platforms.

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Fortnite’s popularity has translated into record sales for

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Epic.

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generated between $1 billion to $2 billion in revenue through in-game

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purchases such as emotes. In May 2018, Fortnite broke its own record

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by generating approximately $318 million in revenue, the biggest

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month ever for a video game. In fact, nearly 80 million people played

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Fortnite in August 2018. Because of Fortnite’s success, Epic’s estimated

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valuation rose from about $825 million to about $5 billion. Bloomberg

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estimates that Epic’s valuation could grow to $8.5 billion by 2018’s end.

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Upon information and belief, Epic will likely continue

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adding popular emotes to Fortnite without the artists’ or creators’

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consent or approval to attract more players and add to its ever-growing

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revenue.

Analysts have estimated that since its release, Fortnite has

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Fortnite’s Unauthorized Use of the Floss

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On December 14, 2017, Fortnite released its Season 2 Battle

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Pass.

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accompanying emotes and other customizations, for the regular price of

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950 V-Bucks. As part of the Season 2 Pass, Fortnite offered a new rare

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emote that it called “Floss.” According to Fortnite, players can obtain

Players could purchase the Battle Pass, alongside its

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Complaint

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the Floss emote as a reward from Tier 49 of the Season 2 Battle Pass.

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Also, on certain occasions, Fortnite sold the Floss emote separately for

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500 V-Bucks.

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As the name indicates, the Floss emote is identical to

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Backpack Kid’s Floss dance. If obtained or purchased, the Fortnite

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player’s avatar can perform the dance during Fortnite gameplay. The

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reaction from many players worldwide was immediate recognition of the

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emote as embodying the Floss while others likely believed it was Epic’s

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original creation.

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Upon information and belief, Epic intentionally developed

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the Floss emote to exploit Backpack Kid performing the Floss. In fact,

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players had asked for it by name in various online forums relating to

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Fortnite. Epic did not seek to obtain Plaintiffs’ authorization or consent

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for its use of Backpack Kid’s likeness and the Floss.

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Moreover, Plaintiffs did not give Epic express or implied

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consent for its use of Backpack Kid’s likeness and the Floss. Epic also

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did not compensate Plaintiffs for its use of Backpack Kid’s likeness and

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the Floss for the Floss emote.

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Upon information and belief, Epic added the Floss emote to

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intentionally exploit the popularity of Backpack Kid and the Floss

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dance without providing Plaintiffs any form of compensation.

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Epic profited from its improper misappropriation of the

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Floss and Backpack Kid’s likeness by, inter alia:

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infringing Floss emote directly to players; 2) selling the Season 2 Battle

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Pass that contains the Floss emote; 3) advertising the Floss emote to

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attract additional players, including Backpack Kid’s fans or those

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persons familiar with the Floss to play Fortnite and make in-game

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purchases; 4) staying relevant to its current players to incentivize those
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Complaint

1) selling the

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players to continue playing Fortnite; 5) impliedly representing that

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Backpack Kid consented to Epic’s use of his likeness; 6) erroneously

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cause the association of the Floss with the Fortnite; 7) creating the false

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impression that Backpack Kid endorsed Fortnite; and 8) inducing

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and/or contributing to Fortnite players’ avatars performing the Floss

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dance.

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Upon information and belief, Epic uses the Floss, and other

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dances, to create the false impression that Epic started these dances

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and crazes or that the artist who created them is endorsing the game.

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Indeed, players have posted thousands of videos of themselves

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performing the “Floss” emote without crediting Backpack Kid as the

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dance’s creator and owner. Accordingly, upon information and belief,

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Epic actively and knowingly directs, causes, induces, and encourages

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others, including, but not limited to, its players, designers, suppliers,

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distributors, resellers, software developers, and repair providers, to

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misappropriate Backpack Kid’s likeness and the Floss dance.

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Prominent artists, including Chancelor Johnathan Bennett,

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known as Chance the Rapper, and Terrence Ferguson, known as 2

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Milly, have also publicly disapproved of Epic’s practices, and advocated

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for Epic sharing profits with the artists that created these dances.

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Epic made a fortune from unlawfully and unfairly

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misappropriating Backpack Kid’s and other artists’ creative expression

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and likeness without crediting or compensating these artists. Plaintiffs

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thus bring this lawsuit to prevent Fortnite from further using Backpack

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Kid’s likeness and the Floss, and to recover the profits rightfully owed

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to them.

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Complaint

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FIRST CAUSE OF ACTION

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(For Direct Infringement of Copyright Against All Defendants)

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Plaintiffs hereby repeat and reallege the allegations set

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forth in paragraphs 1 through 41 above, as though fully set forth herein

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On May 20, 2017, after previously obtaining widespread

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notoriety for his Instagram dance videos, Backpack Kid and his Floss

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dance exploded in popularity after he performed the Floss on Saturday

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Night Live with Katy Perry. Backpack Kid also performed The Floss in

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Katy Perry’s 2017 “Swish Swish” music video, which was posted to

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YouTube.
Backpack Kid is the undisputed creator of the wildly popular

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and immediately recognizable Floss Dance.

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Instagram videos depicting R.H performing the Floss are the original

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depictions of the Floss or Flossing.

Backpack Kid’s 2016

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Plaintiffs are in the process of registering the Floss with the

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United States Copyright Office. On July 30, 2018 and October 22, 2018,

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Plaintiffs submitted applications for copyright registrations, which

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were assigned Copyright Office case numbers 1-6803798591 and 1-

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7053827951, respectively.

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Defendants have infringed and continue to infringe

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Plaintiffs’ copyrights in the Floss by selling the Floss emote as an in-

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game purchase, under the name “Floss” that, if purchased, a player can

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use to make his or her avatar perform during Fortnite gameplay;

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substantially copying the Floss in digital form to the Fortnite game;

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advertising the Floss in its promotional materials; and creating the

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Floss emote as a derivative work of the Floss.

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Complaint

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Defendants did not seek to obtain Plaintiffs’ permission for

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use of the Floss for the Floss emote. Nor have Defendants compensated

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or credited Backpack Kid for their use of the Floss.

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Moreover, Defendants actively and knowingly directed,

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caused, induced, and encouraged others, including, but not limited to,

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its players, designers, suppliers, distributors, resellers, software

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developers, and repair providers, to misappropriate Backpack Kid’s

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likeness and the Floss.

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Defendants’ acts of infringement have been willful,

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intentional, and purposeful, in disregard of and with indifference to

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Plaintiffs’ rights.

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Defendants’ willful and continued unauthorized use of the

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Floss has caused and will continue to cause confusion and mistaken

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belief by leading the public to erroneously associate the Floss with

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Fortnite in violation of 17 U.S.C. §§ 101 et seq.

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As a result of Defendants’ conduct, Plaintiffs have been

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damaged by being precluded from receiving their rightful share of the

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profits earned by Epic for its improper and unlicensed use of Plaintiffs’

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exclusive copyrights in the Floss in Fortnite.

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Plaintiffs are entitled to permanent injunctive relief

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preventing Defendants, and their officers, agents, and employees, and

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all related persons from further using the Floss and engaging in other

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acts in violation of Copyright law.

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As

a

direct

and

proximate

result

of

Defendants’

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infringement of Plaintiffs’ copyrights and exclusive rights under

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copyright, Plaintiffs are also entitled to recover damages, including

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attorneys’ fees, and any profits obtained by Defendants as a result of

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Complaint

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the infringements alleged above, in an amount according to proof to be

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determined at the time of trial.

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In doing the acts herein alleged, Defendants acted

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fraudulently, willfully, and with malice, and Plaintiffs are therefore

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entitled to punitive damages according to proof at the time of trial.

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SECOND CAUSE OF ACTION

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(For Contributory Infringement of Copyright Against All

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Defendants)

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Plaintiffs hereby repeat and reallege the allegations set

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forth in paragraphs 1 through 54 above, as though fully set forth herein.

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Plaintiffs are in the process of registering the Floss with the

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United States Copyright Office. On July 30, 2018 and October 22, 2018,

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Plaintiffs submitted applications for copyright registrations, which

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were assigned Copyright Office case numbers 1-6803798591 and 1-

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7053827951, respectively.

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Defendants have infringed and continue to infringe

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Plaintiffs’ copyrights in the Floss by selling the Floss emote as an in-

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game purchase, under the name “Floss” that, if purchased, a player can

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use to make his or her avatar perform during Fortnite gameplay;

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substantially copying the Floss in digital form to the Fortnite game;

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advertising the Floss in its promotional materials; and creating the

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Floss emote as a derivative work of the Floss.

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By providing the Floss emote necessary for its players to

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commit direct copyright infringement, Defendants have and continue to

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materially

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distributions by its players of the Floss.

contribute

to

the

unauthorized

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Complaint

reproductions

and

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Defendants did not seek to obtain Plaintiffs’ permission for

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its use of the Floss for the Floss emote.

Nor have Defendants

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compensated or credited Backpack Kid for their use of the Floss.

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Moreover, Defendants actively and knowingly directed,

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caused, induced, and encouraged others, including, but not limited to,

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its players, designers, suppliers, distributors, resellers, software

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developers, and repair providers, to misappropriate Backpack Kid’s

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likeness and the Floss.

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Defendants’ acts of infringement have been willful,

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intentional, and purposeful, in disregard of and with indifference to

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Plaintiffs’ rights.

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Defendants’ willful and continued unauthorized use of the

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Floss has caused and will continue to cause confusion and mistaken

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belief by leading the public to erroneously associate the Floss with

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Fortnite in violation of 17 U.S.C. §§ 101 et seq.

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As a result of Defendants’ conduct, Plaintiffs have been

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damaged by being precluded from receiving his rightful share of the

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profits earned by Epic for its improper and unlicensed use of Plaintiffs’

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exclusive copyrights in the Floss in Fortnite.

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Defendants’ conduct is causing and, unless enjoined and

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restrained by this Court, will continue to cause Plaintiffs great and

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irreparable injury that cannot be compensated or measured in money.

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Plaintiffs have no adequate remedy at law. Pursuant to 17 U.S.C. §

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502, Plaintiffs are entitled to injunctive relief, prohibiting further

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contributory infringements of Plaintiffs’ copyrights.

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As

a

direct

and

proximate

result

of

Defendants’

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infringement of Plaintiffs’ copyrights and exclusive rights under

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copyright, Plaintiffs are also entitled to recover damages, including
– 14 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 16 of 29 Page ID #:16

1

attorneys’ fees, and any profits obtained by Defendants as a result of

2

the infringements alleged above, in an amount according to proof to be

3

determined at the time of trial.

4

In doing the acts herein alleged, Defendants acted

5

fraudulently, willfully, and with malice, and Plaintiffs are therefore

6

entitled to punitive damages according to proof at the time of trial.

7

THIRD CAUSE OF ACTION

8

(For Violation of the Right of Publicity Under California

9

Common Law Against All Defendants)

10

Plaintiffs hereby repeat and reallege the allegations set

11

forth in paragraphs 1 through 66, above, as though fully set forth

12

herein.

13

Through their use of the Floss as an in-game dance emote

14

that can be purchased as the emote of the same name, Defendants

15

misappropriated Backpack Kid’s identity.

16

Backpack Kid performing the Floss.

The Floss emote depicts

17

Upon information and belief, Defendants created the Floss

18

emote by capturing and digitally copying Backpack Kid performing the

19

Floss. Defendants then utilized the digital copy to create code that, if

20

purchased, allows player avatars to perform the Floss.

21

Defendants did not seek or obtain Plaintiffs’ authorization

22

or consent for its use of Backpack Kid’s likeness or the Floss for the

23

Floss emote. Nor have Defendants compensated or credited Backpack

24

Kid for their use of his likeness or the Floss.

25

Defendants used Backpack Kid’s likeness and the Floss to

26

generate significant wealth by: 1) selling the infringing Floss emote

27

directly to players; 2) advertising the Floss emote to attract additional

28

players, including Backpack Kid’s fans or those persons familiar with
– 15 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 17 of 29 Page ID #:17

1

the Floss to play Fortnite and make in-game purchases; 3) using

2

Backpack Kid’s fame to stay relevant to its current players to

3

incentivize those players to continue playing Fortnite; 4) impliedly

4

representing that Backpack Kid consented to Epic’s use of his likeness;

5

5) intentionally causing the erroneous public association between the

6

Floss and Fortnite; 6) creating the false impression that Backpack Kid

7

endorsed Fortnite; and 7) inducing and/or contributing to the

8

performance and misattribution of the Floss by others.

9

As a performance artist, Backpack Kid exploits his identity

10

by performing in shows, events, and with the media. Backpack Kid was

11

damaged by Defendants’ conduct as he was prevented from reaping the

12

profits of licensing his likeness or the Floss to Defendants.

13

Defendants’ conduct caused and will continue to cause

14

confusion and mistaken belief by leading the public to erroneously

15

believe that Backpack Kid consented to the use of his likeness or the

16

Floss in the Fortnite game.

17

Plaintiffs are entitled to permanent injunctive relief

18

preventing Defendants, and their officers, agents, and employees, and

19

all related persons from further using Backpack Kid’s likeness or the

20

Floss.

21

Plaintiffs are also entitled to recover damages, including any

22

profits obtained by Defendants as a result of the infringements alleged

23

above, in an amount according to proof to be determined at the time of

24

trial.

25
26
27
28
– 16 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 18 of 29 Page ID #:18

1

FOURTH CAUSE OF ACTION

2

(For Violation of the Right of Publicity Under Cal. Civ. Code §

3

3344 Against All Defendants)

4

Plaintiffs hereby repeat and reallege the allegations set

5

forth in paragraphs 1 through 75, above, as though fully set forth

6

herein.

7

Through their use of the Floss as an in-game dance emote

8

that can be purchased as the emote of the same name, Defendants

9

misappropriated Backpack Kid’s identity.

10

The Floss emote depicts

Backpack Kid performing the Floss.

11

Upon information and belief, Defendants created the Floss

12

emote by capturing and digitally copying Backpack Kid performing the

13

Floss. Defendants then utilized the digital copy to create code that, if

14

purchased, allows player avatars to perform the Floss.

15

Defendants did not seek or obtain Plaintiffs’ authorization

16

or consent for its use of Backpack Kid’s likeness or the Floss for the

17

Floss emote. Nor have Defendants compensated or credited Backpack

18

Kid for their use of his likeness or the Floss.

19

Defendants used Backpack Kid’s likeness and the Floss to

20

generate significant wealth by: 1) selling the infringing Floss emote

21

directly to players; 2) advertising the Floss emote to attract additional

22

players, including Backpack Kid’s fans or those persons familiar with

23

the Floss to play Fortnite and make in-game purchases; 3) using

24

Backpack Kid’s fame to stay relevant to its current players to

25

incentivize those players to continue playing Fortnite; 4) impliedly

26

representing that Backpack Kid consented to Epic’s use of his likeness;

27

5) intentionally causing the erroneous public association between the

28

Floss and Fortnite; 6) creating the false impression that Backpack Kid
– 17 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 19 of 29 Page ID #:19

1

endorsed Fortnite; and 7) inducing and/or contributing to the

2

performance and misattribution of the Floss by others.

3

As a performance artist, Backpack Kid exploits his identity

4

by performing in shows, events, and with the media. Backpack Kid was

5

damaged by Defendants’ conduct as he was prevented from reaping the

6

profits of licensing his likeness or the Floss to Defendants.

7

Defendants’ conduct caused and will continue to cause

8

confusion and mistaken belief by leading the public to erroneously

9

believe that Backpack Kid consented to the use of his likeness or the

10

Floss in the Fortnite game.

11

Plaintiffs are entitled to permanent injunctive relief

12

preventing Defendants, and their officers, agents, and employees, and

13

all related persons from further using Backpack Kid’s likeness or the

14

Floss.

15

Plaintiffs are also entitled to recover damages, including any

16

profits obtained by Defendants as a result of the infringements alleged

17

above, in an amount according to proof to be determined at the time of

18

trial.

19

FIFTH CAUSE OF ACTION

20

(Unfair Competition Under Cal. Bus. & Prof. Code § 17200)

21

Plaintiffs hereby repeat and reallege the allegations set

22

forth in paragraphs 1 through 84, above, as though fully set forth

23

herein.

24

By misappropriating Backpack Kid’s likeness and the Floss

25

through the creation of the Floss emote, Defendants have engaged in

26

business acts or practices that constitute unfair competition in violation

27

of Cal. Bus. & Prof. Code. § 17200.

28
– 18 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 20 of 29 Page ID #:20

1

As a result of Defendants’ violations, Defendants have

2

unjustly enriched themselves by: 1) selling the infringing Floss emote

3

directly to players; 2) advertising the Floss emote to attract additional

4

players, including Backpack Kid’s fans or those persons familiar with

5

the Floss to play Fortnite and make in-game purchases; 3) using

6

Backpack Kid’s fame to stay relevant to its current players to

7

incentivize those players to continue playing Fortnite; 4) impliedly

8

representing that Backpack Kid consented to Epic’s use of his likeness;

9

5) intentionally causing the erroneous public association between the

10

Floss and Fortnite; 6) creating the false impression that Backpack Kid

11

endorsed Fortnite; and 7) inducing and/or contributing to the

12

performance and misattribution of the Floss by others.

13

Plaintiffs have been damaged by Defendants’ conduct as

14

Plaintiffs were prevented from reaping the profits of licensing Backpack

15

Kid’s likeness or the Floss to Defendants.

16

Plaintiffs are entitled to permanent injunctive relief

17

preventing Defendants, and their officers, agents, and employees, and

18

all related persons from further using Backpack Kid’s likeness and

19

Plaintiffs’ trademark in the Backpack Kid name and copyright in the

20

Floss dance.

21

Plaintiffs are also entitled to recover damages, including any

22

profits obtained by Defendants as a result of the infringements alleged

23

above, in an amount according to proof to be determined at the time of

24

trial.

25

SIXTH CAUSE OF ACTION

26

(False Designation of Origin Under 15 U.S.C. § 1125(a))

27

Plaintiffs hereby repeat and reallege the allegations set

28

forth in paragraphs 1 through 90 above, as though fully set forth herein.
– 19 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 21 of 29 Page ID #:21

1

Since creating the Floss and performing it on Saturday

2

Night Live, Backpack Kid’s Floss dance has exploded in popularity. The

3

Floss has become synonymous with Backpack Kid, who is unanimously

4

credited with creating the dance.

5

interviewed several times about the creation of the Floss and how to

6

properly perform it. Accordingly, the Floss is a part of Backpack Kid’s

7

identity and the dance’s unique movements readily evoke imagery of

8

Backpack Kid’s popular Instagram videos and famous Saturday Night

9

Live performance.

Backpack Kid has also been

10

In Fortnite, players can have their characters perform the

11

Floss within the game. In fact, the in-game dance is also named Floss.

12

Through Defendants’ unauthorized use of the “Floss” name and dance

13

in Fortnite, Defendants have misappropriated Backpack Kid’s likeness,

14

copyright and trademark.

15

Moreover,

Plaintiffs

are

damaged

by

Defendants’

16

exploitation of the Floss and Backpack Kid’s likeness through 1) selling

17

the infringing Floss emote directly to players; 2) advertising the Floss

18

emote to attract additional players, including Backpack Kid’s fans or

19

those persons familiar with the Floss to play Fortnite and make in-game

20

purchases; 3) using Backpack Kid’s fame to stay relevant to its current

21

players to incentivize those players to continue playing Fortnite; 4)

22

impliedly representing that Backpack Kid consented to Epic’s use of his

23

likeness; 5) intentionally causing the erroneous public association

24

between the Floss and Fortnite; 6) creating the false impression that

25

Backpack Kid endorsed Fortnite; and 7) inducing and/or contributing to

26

the performance and misattribution of the Floss by others.

27
28
– 20 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 22 of 29 Page ID #:22

1

As a result of Defendants’ conduct, Plaintiffs have been

2

damaged by being precluded from receiving his rightful share of the

3

profits from selling or licensing the Floss name and dance.

4

Moreover, Plaintiffs were damaged by Defendants’ conduct

5

as they were prevented from reaping the profits of licensing the Floss

6

name and dance to Defendants for commercial gain.

7

Plaintiffs are entitled to permanent injunctive relief

8

preventing Defendants, and their officers, agents, and employees, and

9

all related persons from further using the Floss name and dance.

10

Plaintiffs are also entitled to recover damages, including any

11

profits obtained by Defendants as a result of the infringements alleged

12

above, in an amount according to proof to be determined at the time of

13

trial.

14

SEVENTH CAUSE OF ACTION

15

(Trademark Infringement Under California Common Law)

16

Plaintiffs hereby repeat and reallege the allegations set

17

forth in paragraphs 1 through 98, above, as though fully set forth

18

herein.

19

Since Backpack Kid’s creation of the Floss in 2016 and its

20

rise to fame soon after, the Floss exploded in popularity. Consequently,

21

the public has identified the dance as the Floss. Accordingly, since

22

2016, Backpack Kid has used, and thereby owns common law

23

trademark rights in the Floss.

24

The

Floss

name

is

distinctive

and

has

acquired

25

distinctiveness through Backpack Kid’s continuous and widespread use

26

of the Floss name and dance in performances and videos in the United

27

States and worldwide.

28
– 21 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 23 of 29 Page ID #:23

1

In Fortnite, players can have their characters perform the

2

dance within the game. In fact, the in-game dance is also named the

3

Floss. Through Defendants’ unauthorized use of the “Floss” name and

4

dance in Fortnite, Defendants have misappropriated Plaintiffs’

5

trademark.

6

Moreover, Plaintiffs damaged by Defendants’ exploitation of

7

the Floss name through 1) selling the infringing Floss emote directly to

8

players; 2) advertising the Floss emote to attract additional players,

9

including Backpack Kid’s fans or those persons familiar with the Floss

10

to play Fortnite and make in-game purchases; 3) using Backpack Kid’s

11

fame to stay relevant to its current players to incentivize those players

12

to continue playing Fortnite; 4) impliedly representing that Backpack

13

Kid consented to Epic’s use of his likeness; 5) intentionally causing the

14

erroneous public association between the Floss and Fortnite; 6) creating

15

the false impression that Backpack Kid endorsed Fortnite; and 7)

16

inducing and/or contributing to the performance and misattribution of

17

the Floss by others.

18

As a result of Defendants’ conduct, Plaintiffs have been

19

damaged by being precluded from receiving his rightful share of the

20

profits from selling or licensing the Floss name and dance.

21

Moreover, Plaintiffs were damaged by Defendants’ conduct

22

as he was prevented from reaping the profits of licensing the Floss name

23

and dance to Defendants for commercial gain.

24

Plaintiffs are entitled to permanent injunctive relief

25

preventing Defendants, and their officers, agents, and employees, and

26

all related persons from further using the Floss name and dance.

27

Plaintiffs are also entitled to recover damages, including any

28

profits obtained by Defendants as a result of the infringements alleged
– 22 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 24 of 29 Page ID #:24

1

above, in an amount according to proof to be determined at the time of

2

trial.

3

EIGHTH CAUSE OF ACTION

4

(Trademark Infringement Under 15 U.S.C. § 1125(a))

5

Plaintiffs hereby repeat and reallege the allegations set

6

forth in paragraphs 1 through 107, above, as though fully set forth

7

herein.

8

Defendants’ unauthorized use of “Floss” name and dance for

9

the Floss emote in its violent Fortnite game constitutes infringement in

10

violation of the Lanham Act, 15. U.S.C. § 1125(a), et seq., and has caused

11

substantial and irreparable injury to Plaintiffs’ reputation and goodwill.

12

As a direct and proximate result of Defendants’ trademark

13

infringement, Plaintiffs are entitled to permanent injunctive relief

14

preventing Defendants, and their officers, agents, and employees, and

15

all related persons from further using the Floss name and dance.

16

Plaintiffs are also entitled to recover damages, including any

17

profits obtained by Defendants as a result of the infringements alleged

18

above, in an amount according to proof to be determined at the time of

19

trial.

20

Defendants’ acts have been deliberate, willful, and

21

intentional and purposeful to exploit Backpack Kid’s celebrity and

22

popularity of the Floss name and dance.

23

Defendants threaten to continue to advertise, promote,

24

market, sell and offer for sale the Floss emote using the same name as

25

Plaintiffs’ mark, and unless and restrained and enjoined, will continue

26

to do so to Plaintiffs’ irreparable damage.

27

Defendants’ conduct is causing and, unless enjoined and

28

restrained by this Court, will continue to cause Plaintiffs great and
– 23 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 25 of 29 Page ID #:25

1

irreparable injury that cannot be compensated or measured in money.

2

Plaintiffs thus have no adequate remedy at law and are entitled to

3

injunctive relief, prohibiting further infringements of Plaintiffs’

4

trademark.

5
6

In addition, Plaintiffs have incurred costs and attorneys’ fees
to bring this action.

7

NINTH CAUSE OF ACTION

8

(Trademark Dilution Under 15 U.S.C. § 1125(c))

9

Plaintiffs hereby repeat and reallege the allegations set

10

forth in paragraphs 1 through 115, above, as though fully set forth

11

herein.

12

By virtue of the prominent and continuous use of the Floss

13

mark, Plaintiffs’ mark has become distinctive and famous within the

14

meaning of 15 U.S.C. § 1125(c).

15

Defendants’ conduct dilutes the distinctive quality of

16

Plaintiffs’ mark in violation of Section 43(c) of the Lanham Act, 15

17

U.S.C. § 1125(c).

18

Defendants’ conduct and actions have lessened the capacity

19

of Plaintiffs’ mark as Defendants did not credit Backpack Kid nor seek

20

his consent to use the Floss trademark.

21

Defendants’ acts have been deliberate, willful, and

22

intentional and purposeful to exploit Backpack Kid’s celebrity and

23

popularity of the Floss name and dance.

24

Defendants threaten to continue to advertise, promote,

25

market, sell and offer for sale the Floss emote using the same name as

26

Plaintiffs’ mark, and unless and restrained and enjoined, will continue

27

to do so to Plaintiffs’ irreparable damage.

28
– 24 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 26 of 29 Page ID #:26

1

Defendants’ conduct is causing and, unless enjoined and

2

restrained by this Court, will continue to cause Plaintiffs great and

3

irreparable injury that cannot be compensated or measured in money.

4

Plaintiffs thus have no adequate remedy at law and are entitled to

5

injunctive relief, prohibiting further dilution of Plaintiffs’ trademark.

6
7

In addition, Plaintiffs have incurred costs and attorneys’ fees
to bring this action.

8
9
10
11

PRAYER FOR RELIEF
As to the First Cause of Action:
1.

For an order restraining Defendants from using, selling, or

displaying Plaintiffs’ copyright in its Fortnite game;

12

2.

For an award of damages according to proof;

13

3.

For punitive and/or exemplary damages;

14

4.

For attorney’s fees and costs;

15
16
17

As to the Second Cause of Action:
5.

For an order restraining Defendants from using, selling, or

displaying Plaintiffs’ copyright in its Fortnite game;

18

6.

For an award of damages according to proof;

19

7.

For punitive and/or exemplary damages;

20

8.

For attorney’s fees and costs;

21
22
23
24
25
26
27
28

As to the Third Cause of Action:
9.

For an order restraining Defendants from using, selling, or

displaying Backpack Kid’s likeness in its Fortnite game;
10.

For an award of damages according to proof;

As to the Fourth Cause of Action:
11.

For an order restraining Defendants from using, selling, or

displaying Backpack Kid’s likeness in its Fortnite game;
12.

For an award of damages according to proof;
– 25 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 27 of 29 Page ID #:27

1
2
3
4

13.

For punitive and/or exemplary damages;

As to the Fifth Cause of Action:
14.

For an order restraining Defendants from using, selling, or

displaying Plaintiffs’ copyright and likeness in its Fortnite game;

5

15.

For an award of damages according to proof;

6

16.

For punitive and/or exemplary damages;

7

17.

For attorney’s fees and costs;

8
9
10

As to the Sixth Cause of Action:
18.

For an order restraining Defendants from using, selling, or

displaying Plaintiffs’ copyright and likeness in its Fortnite game;

11

19.

For an award of damages according to proof;

12

20.

For punitive and/or exemplary damages; and

13

21.

For attorney’s fees and costs;

14
15
16
17
18
19
20

As to the Seventh Cause of Action:
22.

For an order restraining Defendants from using, selling, or

displaying Plaintiffs’ trademark in Fortnite;
23.

For an award of damages according to proof; and

As to the Eighth Cause of Action:
24.

For an order restraining Defendants from using, selling, or

displaying Plaintiffs’ trademark in Fortnite;

21

25.

For an award of damages according to proof;

22

26.

For punitive and/or exemplary damages;

23

27.

For attorney’s fees and costs;

24
25
26

As to the Ninth Cause of Action:
28.

For an order restraining Defendants from using, selling, or

displaying Plaintiffs’ trademark in Fortnite;

27

29.

For an award of damages according to proof;

28

30.

For punitive and/or exemplary damages;
– 26 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 28 of 29 Page ID #:28

1
2

31.

For attorney’s fees and costs;

As to All Causes of Action:

3

32.

For costs of suit; and

4

33.

For such other and further relief as the Court may deem

5
6
7
8
9

proper.
Dated: December 17, 2018

Respectfully Submitted,
Pierce Bainbridge Beck Price &
Hecht LLP

10
11
12
13

By: /s/ Carolynn Kyungwon Beck
Carolynn Kyungwon Beck
Attorneys for Plaintiffs

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
– 27 –
Complaint

 Case 2:18-cv-10444 Document 1 Filed 12/17/18 Page 29 of 29 Page ID #:29

1
2
3

JURY TRIAL
Plaintiffs request a trial by jury on all issues to which it is entitled
a jury.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Dated: December 17, 2018

Respectfully Submitted,
Pierce Bainbridge Beck Price &
Hecht LLP
By: /s/ Carolynn Kyungwon Beck
Carolynn Kyungwon Beck
Carolynn Kyungwon Beck (SBN
264703)
cbeck@piercebainbridge.com
Daniel Dubin (SBN 313235)
ddubin@piercebainbridge.com
600 Wilshire Boulevard, Suite 500
Los Angeles, California 90017-3212
(213) 337-0065
David L. Hecht (NY4695961) (pro
hac vice admission pending)
dhecht@piercebainbridge.com
Maxim Price (NY684858) (pro hac
vice admission pending)
mprice@piercebainbridge.com
Yi Wen Wu (NY5294475) (pro hac
vice admission pending)
wwu@piercebainbridge.com
20 West 23rd Street, Fifth Floor
New York, New York 10010
(212) 484-9866
Attorneys for Plaintiffs

27
28
– 28 –
Complaint