Fortnite creator rubbishes rapper 2 Milly’s claim it stole his signature dance move for its emotes
The lawsuit claims the Swipe It emote (left) was a rip off of 2 Milly’s Milly Rock dance. (ABC)
The creators of Fortnite say a claim that a dance move players can assign to characters in the game was stolen from a rapper is untrue because simple choreographed steps can’t be owned by anyone.
In the past year, Epic Games has found itself in legal trouble over a range of emotes — small celebratory moves players can purchase for their characters — that are available within the game, many of which appear appropriated from popular culture.
A backpack-wearing Instagrammer and a former cast member from The Fresh Prince of Bel-Air are among those to have claimed Epic, whose game is one of the most popular in the world, should pay them for using their intellectual property.
But first was 2 Milly, aka Brooklyn rapper Terrence Ferguson, who sued Epic last year, claiming a move he created in 2011, which he calls Milly Rock and which went viral a few years ago, turned up as an emote in Fortnite called Swipe It — without his permission.
The case raised the question of whether someone who comes up with a dance move can, like the writer of a famous song, ask for some protection from copycats.
Epic has now addressed that — with a resounding ‘no’
“[2 Milly’s] lawsuit is fundamentally at odds with free speech principles as it attempts to impose liability, and thereby chill creative expression, by claiming rights that do not exist under the law,” Dale Cendali, a lawyer for Epic, wrote on Monday in a motion that asked a California judge to toss the suit.
“No-one can own a dance step.
“Copyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy.”
According to guidance issued by US copyright authorities, individual movements or dance steps, or routines consisting of only a few movements or steps, can’t be claimed.
The rapper, alongside Backpack Kid Russell Horning and Alfonso Ribeiro, from The Fresh Prince of Bel-Air, dispute that and argue their work deserves monetary recognition.
One of the arguments 2 Milly’s side have put up is that Epic Games, which has made more than $1 billion from Fortnite, is creating its emotes by scouring the internet for what’s popular and appropriating it.
And they have given that accusation a racial overtone.
“Epic has consistently sought to exploit African-American talent in particular in Fortnite by copying their dances and movements … including, for example, the dance from 2004 Snoop Dogg music video Drop It Like It’s Hot (named the Tidy emote), Alfonso Ribeiro’s performance of his famous Carlton dance on The Fresh Prince of Bel-Air television show (named the Fresh emote) [and others],” Milly’s lawyer Carolynn Beck said.
It’s an argument outspoken musician Chance The Rapper has backed.
Epic said that, even if Milly Rock could legally be copyrighted, it and the Swipe It move were not even that similar.
“[Milly Rock] consists of a side step to the right while swinging the left arm horizontally across the chest to the right, and then reversing the same movement on the other side,” Ms Cendali writes.
“By contrast … Swipe It consists of (1) varying arm movements, sometimes using a straight, horizontal arc across the chest, and other times starting below the hips and then travelling in a diagonal arc across the body, up to the shoulder, while pivoting side to side on the balls and heels of the feet, (2) a wind up of the right arm before swiping, and (3) a rolling motion of the hands and forearms between swipes.”
Will more Fortnite emotes attract lawsuits?
The game maker also said in its motion to dismiss the lawsuit that video games qualify for First Amendment protection — that they are free speech.
In any case, whether the lawsuit is tossed will determine if we see more legal action against Fortnite’s makers over these hugely popular — and lucrative — emotes.
YouTube personality Nathan Barnatt has previously claimed the Boneless, added to the game last year, was a rip off of a dance he created a decade ago, and that Fortnite’s methods constituted a “scam”.
“Super grey area stuff,” he said in a comment on Reddit around the time of Horning’s lawsuit.
“But you CAN copyright a dance/choreography. Everyone on the internet says you can’t but you can. Unfortunately most of these dances are not long enough to get a copyright. Even Carlton’s.”