Rapper 2 Milly Sues Epic Games For Stealing His Dance

2 Milly from his music video for “Milly Rock.” (Screenshot: YouTube)

Rapper 2 Milly is suing the makers of Fortnite, Epic Games, for selling his signature “Milly Rock” dance as an emote called Swipe it. Pierce Bainbridge, the law firm representing 2 Milly, filed the complaint in the Central District Court of California today, accusing Epic of, among other things, copyright infringement, and exploiting African American talent for profit in the game.

The Milly Rock dance was first introduced into Fortnite as part of its season five battle pass, which came out in July. The dance, which was popularised in 2 Milly’s 2014 song by the same name, was rebranded as “Swipe It,” and given to players who purchased the battle pass and reached its Tier 63 reward.

2 Milly told Kotaku in an email at the time that he felt like his dance had been stolen and that he wished Epic had approached him about using the dance before it was added to Fortnite. He’s now suing the company for damages and to have the emote removed from the game.

“I was never compensated by Epic Games for their use of the ‘Milly Rock,’” 2 Milly said in a press release. “They never even asked for my permission. I am thrilled to have David Hecht and his team at Pierce Bainbridge representing me to help right this wrong.”

It’s unclear whether today’s lawsuit will go anywhere, but if it does it could have big consequences not just for Fortnite, which has been copying and selling dance moves from lots of artists, but other games that also sell dance emotes.

The US started protecting dances under copyright law beginning with the Copyright Act of 1976, the last time copyright law underwent a major revision. According to the lawsuit, 2 Milly applied to register his dance with the Copyright Office on December 4, but having a registered copyright isn’t a requirement for copyright protection.

2 Milly’s law firm isn’t just going after Epic about whether the company had the ok to use the dance. While there are white actors and artists whose dance moves also show up in Fortnite, they are citing this as a racial matter. The debate around this issue, originally raised by Chance the Rapper back in July, has been gaining momentum again as 2 Milly and others have continued to speak out about it.

At a Scrubs reunion panel during the Vulture Festival last month, actor Donald Faison, who played Turk on the show, told the audience that he never got any money from Epic for his “Poison” dance from the show which ended up becoming Fortnite’s default dance emote.

“If you want to see it, you can play Fortnite, because they jacked that shit!” he said of the dance he made up on the spot during production.

“I think they believe that they can railroad African American talent because they doubt that there will be any legal consequence,” Hecht told Kotaku in an interview over the phone.

He said he believes there’s a general expectation in the business world that individual artists, even if they’re famous, can’t stand up to a large corporation like Epic, calling it an alarming trend. Hecht’s firm recently represented the Nigerian jewellery maker Chris Aire who reached a settlement against French luxury maker LVMH over its use of his “Red Gold” trademark.

When reached by Kotaku, a spokesperson for Epic said it had not comment on the matter.

A large part of the lawsuit filed revolves around copyright claims, it also alleges that Epic violated 2 Milly’s publicity rights under California law. It’s intended to protect a person’s right to control how their likeness or aspects of their identity are used for commercial purposes. 2 Milly’s lawsuit claims the sale of his dance created the false impression that he endorsed Fortnite or consented to his likeness being used in the game.

It also alleges that Epic digitally copied the dance from 2 Milly’s own performance of it, rather than trying to simply recreate it from scratch. The likeness claim may seem like a stretch given that, while 2 Milly’s dance appears in the game, he does not.

The firm is also suing Epic by another of the firm’s clients, Lenwood “Skip” Hamilton. The former football player and wrestler has accused Epic of stealing his likeness to create the character of Cole Train from Gears of War against his wishes.

The suit, which is also against Microsoft, which published the games, and Lester Speight, a former co-worker of Hamilton’s who went on to voice the character, was filed in January of 2017 and is still ongoing. Epic has not commented on that case either.


Comments

    Scattershot lawsuit, fire all the pellets and see what hits. It'll be interesting to follow this case (the likeness one is almost certain to fail), and it certainly does have serious repercussions for all games that use dances. Blizzard will be watching this too, I suspect.

    exploiting African American talent for profit

    This is illegal? I think not.

      But it gets the public on your side!

      This is the plaintiff very smartly bolstering a shaky legal claim with moral claims that, the plaintiff hopes, will generate bad PR for Epic and force Epic to settle.

    Social dances (e.g. whip/nae nae), individual movements (e.g. moonwalk) and simple routines (e.g. end zone dances) are explicitly excluded as protected categories of dance in the US. Given that it doesn't need skilled dancers, and is very short, it's highly unlikely that it's protected. Unfortunately.

    Still kind of BS though.

      I agree that it is pretty unlikely to succeed, which is why they are strapping it up with 'this is RACIST!' claims in the hope that Epic will pay money for the plaintiff to go away.

      And the likeness claim? We all saw how that turned out for Lindsay Lohan... and she had a WAY stronger claim than this drongo.

        Yeah totally, if Lohan lost her likeness case he's got no chance. Riding the media coverage to a settlement seems like his best option for a positive outcome.

      I thought this was established decades ago as fair use, ending in them not being protected as you say. WoW uses established dances as well, as do many other games and you'd expect someone to have tried to sue before.

      There has to be some precedential case somewhere where this has been tested. This seems like a money grab to me, nothing else.

        Not sure tbh, I'm not familiar with the case law, but I think it's just that it's explicitly excluded as a protected dance under the relevant legislation. My understanding of fair use in the US is that it's designed to protect the usage of copyrighted works, in other works - reviews / parodies / teaching materials etc - but not just straight reproduction. Given the dance has been copied as is, with nothing added, my guess is that fair use probably doesn't apply. It's being used commercially too - arguably unlike Faison's dance, as that one's free - so that probably wouldn't go in Epic's favour as well.

          From what I can see, fair use is about published works, not just copyrighted. Pretty much everything published is covered by copyright law by default though, so its pretty much a moot point. But not everything. It doesn't need to be altered either, fair use covers using small snippets, such as for news stories.

          My point was more that copying a dance move has been around for a long time (Michael Jackson's Moonwalk was first done by Cab Calloway in the 1930's), and suing for copyright has never successfully won in court that I can find.

          If its not actually fair use, its going to be something similar, or similar uses would have been sued repeatedly in the past. As I said, WoW's dances are all copies of established dances, as are plenty of other games. God knows how many games use the Macarena for example.

            I really hope the case fails. I'm disgusted with the whole sue and see what happens mentality that prevails today. It's making a minefield of creative media and games. Can't use likenesses, can't use sporting teams or cars, now dances? Jeez.

            If anything people whose "dance" has been used in a game like this should be thanking Fortnite for the added publicity.

            And while we're at it, if you're going to sue the game for allowing people to do the dance you might as well sue all the kids who are doing the dance in real life too. After all that's public performance so why the hell not? :(

              Is he suing them for allowing people to do the dance, or suing them for selling people his dance? It seems pretty shady to directly lift other people's creative works and sell them for profit. Which would be irrelevant to kids doing the dance irl.

    It would be amazing if this failed horribly and set a legal precedent for ass-backward laws that use skin colour as some sort of condition. Is there a similar law for exploiting non-african-american people?

      The same law applies to all people, that being the copyright law of 1976.

    Who's 2 Milly? Unsure if I feel old, or justified as this is probably another generic produced trash rapper.

    How does someone even claim damages on this? What income did this guy lose from the dance being in-game? If anything it has bolstered reputation.

    Anyone else see the similarities between that "music video" and shook ones part 2 by mobb deep. Everything from shots, composition, background activity etc

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