Backing up legal threats from last month, the rapper 2 Milly, also known as Terrence Ferguson, has filed a lawsuit against Fortnite dev Epic Games, alleging that one of the dance emotes featured in the competitive battle royale game infringes on the recently filed copyright for the “Milly Rock," a dance Ferguson created four years ago.
The lawsuit, shared online by the Hollywood Reporter, accuses Epic of misappropriating the Milly Rock dance through an in-game “Swipe It” emote that bares noticeable similarities to Ferguson’s choreography and was included, according to the lawsuit, without crediting him or contacting him for permission to use or reproduce the move.
The complicated issue at play here is that, while many forms of creative media can be copyrighted and protected from duplication, dance moves often fall into a copyright grey area. As pointed out by The Hollywood Reporter, choreography can be protected under copyright law, but the building blocks of that choreography -- individual dance steps and “simple” routines -- are rarely protected. Ferguson himself has just recently applied for a copyright over the Milly Rock dance but, as of the filing of the legal complaint, that application has yet to be granted.
“The Swipe It emote is identical to Ferguson’s Milly Rock dance,” reads the complaint. “If obtained or purchased, the Fortnite player’s avatar can perform the dance during Fortnite gameplay. The reaction from many players worldwide was immediate recognition of the emote as embodying the Milly Rock while others likely believed it was Epic’s original creation. Upon information and belief, Epic intentionally developed the Swipe It emote to intentionally mimic Ferguson performing the Milly Rock.”
Fortnite’s in-game emotes, which can be picked up for premium currency or earned through paid battle pass subscriptions, frequently mirror dance moves from pop culture, including TV shows and music videos. As the lawsuit highlights, moves from the likes of Psy’s Gangnam Style, Snoop Dogg’s Drop It Like It’s Hot, and the Carlton dance from the TV show The Fresh Prince of Bel-Air have all appeared in the game under less recognizable names like 'Ride the Pony,' 'Tidy,' and 'Fresh.' The lawsuit also specifically mentions that many of these dances originated from African-American creators and accuses Epic of “[seeking] to exploit African-American talent in particular in Fortnite by copying their dances and movements.”
The lawsuit goes on to say that Epic has profited from “improper misappropriation” of both the Milly Rock and Ferguson’s likeness by selling the emote (both for in-game currency and as a battle pass reward) and advertising the Swipe It emote to attract new players, among other things listed in the full complaint.
All in all, the complaint seeks a jury trial and accuses Epic of direct infringement of copyright, contributory infringement of copyright, two counts of violation of the right of publicity, and unfair competition. Ferguson himself is seeking damages of a to-be-determined sum and for the court to block Epic Games from using, selling, displaying the alleged infringing Fortnite emote.