The makers of Fortnite have asked a federal judge to throw out a lawsuit from a rapper who says the video game is illegally using a dance he created. Epic Games filed the motion Monday to dismiss the lawsuit filed in December by 2 Milly, a Brooklyn-based rapper whose real name is Terrence Ferguson. He alleges that Fortnite uses the “Milly Rock”, a dance he came up with in 2011 that became popular after a 2015 song and video.
Epic Games’ attorneys argue in the motion that the dance known in the game as “Swipe It” is substantially different from the “Milly Rock”, and that even if it weren’t, courts have held that simple dances can’t be copyrighted.
2 Milly’s attorney David Hecht responded in an email to the Associated Press saying choreography does have copyright protection, and there is no doubt that Epic Games used and tried to profit off the “Milly Rock” dance.
The rapper was the first of several artists, including actor Alfonso Ribeiro and rapper BlocBoy JB, to sue Fortnite over dances used in its “emotes,” short celebrations that users can buy for their characters to use to celebrate kills within the game.
A judge has scheduled arguments on the dismissal motion for March 4.
The fight-to-the-finish game Fortnite quickly became one of the most popular in history after its 2017 release.
Players can use real-world money to buy in-game currency that gets their characters outfits, gear or “emotes,” brief dances that have become a cultural phenomenon performed on playgrounds, in social media posts and in the scoring celebrations of professional athletes.
2 Milly is not the first prominent person to complain about Fortnight’s use of the moves.
Chance the Rapper criticised the game for not including the songs behind some of its dances, giving artists a chance to share in its wealth.
Actor Donald Faison, whose dance from the TV show Scrubs appear in an “emote,” tweeted in March, “Dear Fortnite … I’m flattered? Though part of me thinks I should talk to a lawyer.”
Other than specific choreography within a specific copyrighted work, dance moves can be difficult to sue over.