Fortnite maker Epic Games has long faced criticism for using existing dance moves as “inspiration” for its popular in-game emotes without offering compensation to the creators of those dances. Rapper 2 Milly (aka Terrence Ferguson) is now the first to take Epic to court over the issue.
Milly argues in a federal lawsuit filed this week in the Central District of California that Epic infringed on his copyright, violated his right of publicity, and engaged in unfair competition by using his “Milly Rock” dance move as the basis for the paid “Swipe It” emote in the game without his permission. “Although identical to the dance created, popularized, and demonstrated by Ferguson, Epic did not credit Ferguson nor seek his consent to use, display, reproduce, sell, or create a derivative work based upon Ferguson’s Milly Rock dance or likeness,” the lawsuit alleges.
The Milly Rock dance move traces its roots back to 2014, when it was popularized in a video for a song of the same name that currently has over 18 million YouTube views. The extremely similar “Swipe It” emote in Fortnite is currently sold for 500 V-Bucks (about $5) or as part of a Season 5 Battle Pass for 950 V-Bucks (About $9.50).
“Epic uses the Milly Rock, and other dances, to create the false impression that Epic started these dances and crazes or that the artist who created them is endorsing the game,” the lawsuit argues. “Indeed, players have posted thousands of videos of themselves performing the ‘Swipe It’ emote with the hashtag, #fortnitedance, without referencing the Milly Rock or crediting Ferguson as the dance’s creator and owner.”
Milly told CBS News in November, “I don’t even want to bash them for all the millions. Know what I am saying? It’s not really like that. I just feel like I have to protect what’s mine.”
The lawsuit goes on to suggest that the use of Milly Rock is part of a pattern in which “Epic has consistently sought to exploit African-American talent in particular in Fortnite by copying their dances and movements.” Snoop Dogg, Alfonso Ribeiro, Marlon Webb, and Donald Faison are cited in the lawsuit as other black artists whose dance moves have been appropriated for the game.
In a press release, lawyers at Pierce Bainbridge Beck Price & Hecht LLP also note that “our client Lenwood ‘Skip’ Hamilton is pursuing similar claims against Epic for use of his likeness in the popular ‘Cole Train’ character in the Gears of Wars [sic] video game franchise. Epic cannot be allowed to continue to take what does not belong to it.”
Though this is the first lawsuit over Fortnite‘s use of existing dance moves, Milly isn’t alone in complaining publicly about the practice. Chance the Rapper tweeted in July that “Fortnite should put the actual rap songs behind the dances that make so much money as Emotes. Black creatives created and popularized these dances but never monetized them. Imagine the money people are spending on these Emotes being shared with the artists that made them.”
Faison, for his part, recently said of a dance he popularized on NBC’s Scrubs, “if you wanna see it, you can play Fortnite, because they jacked that shit… I don’t get no money. That’s what y’all are thinking, right? Somebody got paid? No. No. I did not. Somebody stole that shit, and it’s not mine any more.”
Can you copyright a dance move?
According to the lawsuit, Milly is currently “in the process” of registering a copyright for the Milly Rock dance move, filing with the US Copyright Office just days before the lawsuit was filed. But whether Milly Rock is protectable under US copyright law is still an open question.
The US Copyright office’s guidance on Choreography and Pantomime defines a “choreographic work” in part as “rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment.” But just as common words and phrases are not subject to copyright, “individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet.”
As Foley Hoag Associate Alyssa Clarke wrote last year, “allowing these building blocks to be protected could chill creativity and innovation.”
Separate from the copyright issues, Milly alleges in his lawsuit that Epic “misappropriated Ferguson’s identity” under California law by “digitally copying” his performance without permission. Through the use of “Swipe It” in Fortnite, Milly has been “prevented from reaping the profits of licensing his likeness to Defendants for commercial gain,” according to the lawsuit.
And aside from the legal issues, Epic faces something of a PR problem in not compensating artists for dances used in a franchise that has reportedly brought in over a billion dollars. “Game companies have to be more respectful to people in the dance scene,” hip-hop choreographer Omar Awua told the BBC in November. “They need to do more research as it could be seen as a form of stealing… people are more upset because Fortnite have turned over a lot of money.”