Epic Games urged a judge to dismiss a lawsuit by rapper Terrence “2 Milly” Ferguson, who accused Epic of copying his “Milly Rock” dance moves in a Fortnite player emote. Epic responded to Ferguson’s complaint with a long list of legal defenses — including the claim that its dance emote, known as “Swipe It,” isn’t even using the same moves.
In its defense, Epic’s lawyers wrote that Ferguson’s dance — as seen in the music video below — was too simple to be protected by copyright. “No one can own a dance step,” the motion reads, because “individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression.” It also argued that the context is vitally different: while Ferguson used “Milly Rock” moves “while listening and dancing to music with his friends, Swipe It’s role in Fortnite is to allow players to express themselves on the battlefield.”
Even beyond those claims, Epic claims the “Milly Rock” dance and Swipe It are only tangentially related. Its defense exhaustively describes the moves involved in each dance, based on video submitted for the lawsuit. (Sadly, there is not an accompanying diagram.) Here’s its description of 2 Milly’s move:
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 — namely, a side step to the left while swinging the right arm horizontally across the chest to the left.
And here’s how it describes “Swipe It”:
By contrast, Swipe It consists of (1) varying arm movements, 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, while pivoting on the balls and heels of the feet, (2) a wind up of the right arm before swiping, and (3) a rolling motion of the hands and forearms between swipes.
Moreover, whereas in the Dance Step, the torso, shoulders, and head face frontward while the ribs move from side to side with the arm movements; in Swipe It, the torso, shoulders, and head turn to the side with the arm movement, and the ribs remain in place.
2 Milly’s dance, it notes, is also performed at a “significantly quicker” tempo.
These are actually important details, because Ferguson’s complaint claimed that Epic analyzes and copies dance moves frame by frame, resulting in emotes that were “identical in every respect” to the original. But the moves are still similar, and lots of people have made the connection between Fortnite’s emote and 2 Milly’s dance step.
In a statement, 2 Milly’s lawyers claim that the dance in question is choreography and therefore protectable. “It is obvious that Epic took 2 Milly’s dance and sought to profit off of it,” David Hecht, of the law firm Pierce Bainbridge Beck Price & Hecht, said. “Epic is essentially talking out of both sides of its mouth in its motion to dismiss: it argues that, one the one hand, the ‘Swipe-It’ emote is not the Milly Rock (which is ridiculous, as fans have long recognized the emote is a copy of Milly’s signature dance) but it also argues that, on the other hand, even if it is Milly’s dance, it is not protectable. Regarding latter point, the law is clear that dance choreography is protectable under the Copyright Act.”
The more interesting issue is still when (and whether) you can legally own a short dance like the one in “Milly Rock.” Dance can only be copyrighted if it reaches the level of “choreography,” and there’s not much established case law around video game gestures. Ferguson’s lawsuit is one of a few complaints against Epic over Fortnite emotes — each situation slightly different, and all of them uphill battles for the dancers involved.
There are good reasons to avoid granting strict legal protections to short dance sequences — copyright can stifle new, creative adaptations of old works. But as Waypoint recently argued, copying artists like Ferguson (especially without credit) could still be unethical, even if it turns out to be legal.
Update 2/12, 7:32PM ET: Added statement from the law firm representing 2 Milly in this case.