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Fortnite banana can appear in court naked says judge in Epic vs Apple legal footnote

US District Judge Yvonne Gonzalez Rogers late last week handed down a judgment [PDF] in the Epic Games vs Apple antitrust trial, which is likely to have significant consequences for developers and the corporations that control the ecosystems in which they operate.

However, it also included a footnote which unexpectedly set legal precedent in another unlikely area: whether bananas are legally bound to wear clothes in court.

This odd ruling seems to have come as the judge’s contribution to a sort of running joke during the trial, which started when an Apple lawyer showed a well-known Fortnite character called Peely during its description of the game, with Apple’s treatment of Fortnite in its app store being the central point of contention in the case.

Peely is an anthropomorphic banana who is normally depicted in his natural state, namely unclothed. But in its presentation to the court, Apple’s legal team depicted Peely in his alternative Agent Peely guise, in which Peely is depicted wearing a suit in the style of James Bond. Apple’s counsel noted that this choice of formal attire was because “we thought it better to go with the suit than the naked banana, since we are in federal court this morning.”

This rare light-hearted moment was later referred to again when a member of Epic’s legal team asked the company’s VP of marketing Matthew Weissinger: “There might have been an implication that to show Peely without a suit would have been inappropriate, do you recall that? Is there anything inappropriate about Peely without a suit?”

“It’s just a banana man,” Weissinger responded*, suggesting that as well as disagreeing on what was a suitable rate for Apple to charge developers for access to their app store and whether it was acceptable for developers to direct customers to other non-Apple payment systems, Epic also fundamentally objected to Apple’s prudishness with regard to the depiction of bananas.

Having heard all of the arguments in the case, Judge Rogers returned a verdict that supports Epic’s more relaxed approach to banana nudity, even if it didn’t give them everything they wanted elsewhere. In a footnote on page 9 of the injunction, she specifically rules on the matter of Peely’s court attire:

“With respect to the appropriateness of Peely’s ‘dress,’ the Court understood Apple merely to be ‘dressing’ Peely in a tuxedo for federal court, as jest to reflect the general solemnity of a federal court proceeding. As Mr. Weissinger later remarked, and with which the Court agrees, Peely is ‘just a banana man,’ additional attire was not necessary but informative.”

While this may seem to settle once and for all the requirements for the depiction of Peely’s peel in any future appeals**, it does leave some interesting legal questions unanswered.

Since the ruling clearly applies to bananas, does it just apply to Peely or can the principle be extended to all bananas? Weissinger referred to Peely as “just a banana man” and Judge Rogers noted that the court specifically agreed with this perspective. It is possible neither realised that in the UK there was a children’s cartoon strip and animated TV series called Bananaman, featuring a square-jawed eponymous hero whose appearance in court without clothes might cause more difficulties than that of Peely. Especially since Bananaman was in reality a schoolboy called Eric.

Youtube Video

And does the ruling only apply to bananas, or does this approval of banana nudity also apply to oranges, lemons, limes, cherries and – especially importantly, given the litigants in this case – apples? Is this a ruling which frees fruit in general from the burden of donning clothes to appear in court?

These questions will doubtless be answered in future instalments of the trial, which Epic will be resuming shortly when it appeals the decision.

We have contacted Epic about the Peely ruling and we will update the story if they get back to us.

We haven’t contacted Apple because you might as well go outside and shout at the sun. ®

* This is how the comment is transcribed in the court docs. But it could be that there was an implied comma in the comment, meaning Weissinger actually said “It’s just a banana, man”. For some reason this seems much more pleasing and makes us imagine him sounding like Zaphod Beeblebrox in the BBC TV adaptation of The Hitchhiker’s Guide To The Galaxy.

** Get in.


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