Fortnite maker Epic Games has long faced criticism for using existing dance moves as "inspiration" for its popular in-game emotions without offering compensation to the creators of those dances. Rapper 2 Milly (aka Terrence Ferguson) is now the first to take Epic to court on the issue.
Milly argues in a federal lawsuit filed this week in the Central District of California that epic violated 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. "Though identical to the dance created, popularized, and demonstrated by Ferguson, Epic did not credit Ferguson nor sought his consent to use, display, reproduce, sell or create a derivative work based on Ferguson's Milly Rock dance or similarity," the lawsuit alleged.
The Milly Rock dance moves traces its roots back to 201
"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 do not even want to bash them for all the millions. Know what I'm 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 Epic has consistently sought to exploit African-American talent 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 can not be allowed to continue to take what does not belong to it. "
Though this is the first lawsuit about Fortnite 's use of existing dance moves, Milly is not 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 as 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 who 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 do not get no money. That's what y'all are thinking, right? Somebody got paid? No. No. I did not.
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.
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. " Men som almindelige ord og sætninger er ikke underlagt ophavsret, "individuelle bevægelser eller dansetrin i sig selv er ikke ophavsretlige, såsom den grundlæggende waltzstrin, hustle-steget, grapevine eller anden position i klassisk 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 similarity to defendants for commercial gain," according to the lawsuit.
And aside from the legal Issues, Epic faces something of a PR issue 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 has turned over a lot of money."