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A saxophone player whose music went viral in a 2014 YouTube video and who sued Epic Games over claims that the company is using his "signature" dance moves in Fortnite Battle Royale can move forward with his lawsuit on a single claim.

U.S. District Judge John Padova of the Eastern District of Pennsylvania granted Epic's motion for dismissal on seven of eight causes of action in the lawsuit filed by musician Leo Pellegrino, a Pittsburgh native who plays baritone sax in the group Too Many Zooz.

Pellegrino's Lanham Act false endorsement claim was the sole one to proceed. Padova said Pellegrino has the opportunity to amend his claims.

Since becoming a hit on YouTube, the group has been featured in several TV commercials and has worked with recording artists, including Beyonce. Pellegrino claimed Epic made an unauthorized use of his likeness in an "emote" dance, which can be used by characters in the video game.

Epic's defense largely centered on Fortnite being a creative work protected by the First Amendment, according to Padova's opinion. Padova looked to the Third Circuit's decision in Hart v. Electronic Arts for guidance. In that case, the court held that an expressive work is protected if the celebrity's likeness is so transformed that it becomes the defendant's own expression.

"Epic argues that its use of Pellegrino's likeness in Fortnite (allowing Fortnite avatars to be equipped with the Signature Move a.k.a. the Phone It In emote) is so transformative that the likeness has become primarily Epic's own expression rather than Pellegrino's likeness," Padova said. "Applying the test as articulated in Hart, we observe that the complaint does not allege that the Fortnite avatars equipped with the Phone It In emote, i.e., Pellegrino's likeness, share Pellegrino's appearance or biographical information. Indeed, the complaint contains a picture of a Fortnite avatar equipped with the Phone It In emote, and the avatar does not bear a strong resemblance to Pellegrino."

Pellegrino's complaint also claimed that by allegedly replicating his signature move in Fortnite, Epic has misappropriated his likeness and trademark, in violation of the Lanham Act.

Padova agreed to dismiss the first component of that claim, false designation. But he denied Epic's request to dismiss the false endorsement claim, reasoning that it is not barred.

"Epic named the emote 'Phone It In' to 'allude[] to Pellegrino's appearance in a Google Pixel 2 phone commercial in 2017," Padova said reciting the allegations. "'The reaction from many players worldwide was immediate recognition of the emote as embodying the Signature Move'; and, as a result of Epic's alleged use of 'Pellegrino's likeness and the Signature Move,' Epic has 'creat[ed] the false impression that Pellegrino endorse[s] Fortnite.' These allegations relate to Epic's use of Pellegrino's likeness and trademark to create the impression that Pellegrino endorses Fortnite and do not relate to the alleged confusion over the origin of the Signature Move."

Pellegrino is represented by Andrew Lorin of Pierce Bainbridge Beck Price & Hecht. Epic is represented by Dale Cendali of Kirkland & Ellis. Neither responded to requests for comment.