Did the wildly popular video game Fortnite misappropriate some of its dance moves?

Rapper Terrence Ferguson, also known as 2 Milly, filed suit against Epic Games, the manufacturer of the phenomenally popular game, alleging that the company ripped off a dance routine he unveiled four years ago in his video for the song “Milly Rock.” The video went viral and celebrities such as Wiz Khalifa and Rihanna posted videos of themselves doing the dance on social media, the Brooklyn rapper said.

“Defendants capitalized on the Milly Rock’s popularity, particularly with its younger fans, by selling the Milly Rock dance as an in-game purchase in Fortnite under the name ‘Swipe It,’ which players can buy to customize their avatars for use in the game,” according to the California federal court complaint. “Although identical to the dance created, popularized, and demonstrated by Ferguson, Epic did not credit Ferguson nor seek his consent to use, display, reproduce, sell, or create a derivative work based upon Ferguson’s Milly Rock dance or likeness.”

Since Fortnite was released last year, game sales have exceeded $1 billion, bringing in $318 million in May 2018 alone, even though the game is free to play. Players, however, can make in-game purchases, including dance moves to personalize their avatars.

Ferguson told the court that Fortnite “creates emotes by copying and coding dances and movements directly from popular videos, movies, and television shows without consent,” listing examples such as Korean entertainer Psy’s “Ride the Pony” dance from “Gangnam Style,” the dance from Snoop Dogg’s 2004 “Drop It Like It’s Hot” music video and the famous “Carlton” dance featured on The Fresh Prince of Bel-Air television show.

Since the Milly Rock dance is synonymous with Ferguson, who created the dance that bears his stage name and who performs the dance at every performance, “the Milly Rock is a part of Ferguson’s identity and the dance’s unique movements readily evoke imagery of Ferguson’s Milly Rock music video,” the rapper claimed.

Ferguson also alleged that since he recently filed for copyright protection, Epic’s “Swipe It” dance move constituted an infringement. The rapper further maintained that Epic created the false impression that he endorsed the game, and it misappropriated his likeness and dance moves.

Ferguson alleged copyright infringement, rights-of-publicity violations and unfair competition under California law. He asked the court for a restraining order, as well as compensatory and punitive damages.

To read the complaint in Ferguson v. Epic Games, Inc., click here.

Why it matters: Whether dance moves can be copyrighted is no simple matter. Although copyright protection exists for choreographic works, the Copyright Office has issued guidance that “social dance steps” and “short dance routines consisting of only a few movements or steps with minor lineal or spatial variations, even if a routine is novel or distinctive,” are not entitled to copyright registration. Even if he can convince a court that Epic stole his dance moves, Ferguson faces an uphill battle to recover damages if those moves lack legal protection.