Almost two months after Terrance Ferguson, better known as the rapper 2 Milly, sued the makers of Fortnite for including his “Milly Rock” dance in the game, Epic Games has asked the judge in the case to dismiss the lawsuit, arguing that the Milly Rock is too short to be copyrighted and that it’s not the same as the “Swipe It” dance in Fortnite.
As first reported by The Verge, Epic calls 2 Milly’s lawsuit “fundamentally at odds with free speech principles” and that the ownership being asserted by the rapper doesn’t exist under current law. “No one can own a dance step,” the motion reads. “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.”
In an email to Kotaku, 2 Milly’s lawyer, David Hecht, disputed that characterization. “2 Milly did not seek copyright registration of a ‘move’ but rather a choreographic work,” he wrote. “Epic has infringed that work. The question is not whether Epic’s infringing emote is protectable. The lawsuit is about whether the Swipe-It emote infringes my client’s rights—which it undoubtedly does.”
The U.S. Copyright Office distinguishes between simple dance moves, which can’t be copyrighted, and more complex patterns of movement which can be. “The U.S. Copyright Office cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive,” the office states. It’s not clear if the Milly Rock clears that threshold.
Epic’s argument also goes further, however, and claims that even if the Milly Rock dance could be copyrighted, the dance that appears in Fortnite under the name “Swipe It” is substantially different. It’s here that the Epic’s argument gets really into the weeds, describing each dance beat by beat and pointing out the differences.
Here’s Epic describing the Milly Rock:
“As shown by the accompanying video clip, the Dance Step 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.”
And here’s Epic describing Swipe It:
“Using Swipe It, which is performed at a moderate tempo, an avatar pivots on the balls and heels of its feet (not stepping side to side). At the same time, the avatar swipes its arms back and forth, sometimes using a straight, horizontal arc across the chest, and other times starting below the hips and then traveling in a diagonal arc across the body, up to the shoulder (the arm movements are not consistently across the avatar’s chest). The torso of the avatar turns to the side in a three-quarter view as the arm swipes, but the ribs remain in place. The emote also features bent wrists and a rolling motion of the hands and forearms.”
While there are clearly differences between the two dances, they weren’t enough to stop some fans from recognizing Swipe It as an imitation of the Milly Rock back when the emote was released last summer. Still, it’s unclear how these issues, and several others raised in the lawsuit, will be adjudicated in court. The law surrounding copyright and dance, specifically as it relates to portrayals in video games, hasn’t been tested in this way before.
How the judge decides in the 2 Milly case will also likely have consequences for the other people currently suing Epic for allegedly stealing their own dance moves, including Fresh Prince’s Alfonso Ribeiro. That actor’s “Carlton Dance” was recently removed from Forza Horizon 4, a possible sign that other video game companies are waiting to see how the cases against Epic are settled before continuing to incorporate other people’s iconic dances into their own games.