Rapper 2 Milly has filed a copyright and right of publicity lawsuit against the makers of the Fortnite video game claiming that they are illegally using a dance move that he created in their wildly popular video game.
The Brooklyn-based rapper, whose real name is Terrence Ferguson, alleges that Fortnite-maker Epic Games is misappropriating his dance moves without permission, compensation, or credit. The dance move at the center of the controversy was featured in 2 Milly’s 2014 music video for “Milly Rock”. The video for the song garnered widespread attention, and many other celebrities including Rihanna, Chris Brown, and Wiz Khalifa posted videos on social media of themselves performing the dance.
The complaint alleges that Epic Games has included the dance move, titled “Swipe It” in the highly popular game, along with many other famous dance moves.
Copyright law allows for the protection of choreography, so long as the work is fixed in a tangible medium of expression from which the work can be performed. The U.S. Copyright Office has provided guidance on the issue stating:
“The drafters of the copyright law also made clear that choreographic works do not include social dance steps and simple routines. Registrable choreographic works are typically intended to be executed by skilled performers before an audience. By contrast, uncopyrightable social dances are generally intended to be performed by members of the public for the enjoyment of the dancers themselves. Social dances, simple routines, and other uncopyrightable movements cannot be registered as separate and distinct works of authorship, even if they contain a substantial amount of creative expression.”
2 Milly is seeking an injunction and monetary damages. While this may or may not lead to an interesting test to the limits of copyright protection, it’s a very clear example of changing uses and new media leading to novel copyright law issues.