Epic Games Asks Court To Dismiss 2 Milly Lawsuit, Claims Fortnite Dance Is Different

Gif: PunchNShoot, YouTube

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 travelling 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 recognising Swipe It as an imitation of the Milly Rock back when the emote was released last winter.

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.


Comments

    So Mocap sessions are usually recorded not only by the little polkadotted suits but visually so animators can get small details corrected... will be interesting to find oit what MUSIC was playing when the mocap dancer was not repeating an original dance move they came up on there own... each and every time. :P

    Everyone: Swiper, stop swiping!

    Epic: No you.

    Epic calls 2 Milly’s lawsuit “fundamentally at odds with free speech principles”...Are they talking First Amendment Free Speech because last I checked, 2 Milly is not a government body.

    I bet all eyes are on this because it will a) set the precedent for emote use in games and b) will no doubt spark conversation about IP law and how it applies to a person's right to create an artistic expression and not have it capitalised upon by others. It kind of seems logical that if Footballers can trademark a touchdown routine then people could trademark a dance move?

    It's all just another sign that technology and the internet are outpacing the lawmakers. We're now in a time where these micro-expressions are more prevalent than ever thanks to the internet and people are just helping themselves to them and making of money off of their popularity.

      It kind of seems logical that if Footballers can trademark a touchdown routine then people could trademark a dance move?

      I learn something every day! I did not know that was a thing that happens. If that's the case, it DOES seem logical! Although, there is a difference between Copyright and Trademark which is important in these kind of arguments.

      We're now in a time where these micro-expressions are more prevalent than ever thanks to the internet and people are just helping themselves to them and making of money off of their popularity.

      Hm. I dunno... do you think Fortnite was taking advantage of 2 Milly's dance's popularity to expand its audience, or do you reckon the dance is popular because Fortnite is?

      As I understand it, the free speech principles go beyond just Govt speech over there. The Fair Use principles are the obvious example, which tap into the free speech amendment for their justification.

      As for the footballer, its the same thing. They're trademarking a choreographed routine, which is pretty common. Often you don't even need to apply, the mere fact its recorded somewhere is generally enough. That's actually important in all this.

      The debate is about whether a) the move is considered innovation (and hence, is it copyrightable in the first place), and b) whether its the entire routine copyrighted or whether the specific portion is as well. Like most legal things, it gets very technical very fast.

      Example of that would be Torvil and Deans Bolero performance. You couldn't copy the entire act, but there are moves within in that are very common in the sport. Recreating one of those wouldn't raise an eyebrow, nor would stringing a handful together in the same sequence.

      None of this has ever been tested in court though, which I found very surprising. It makes this all unprecedented, which is why so many people are interested in the outcome.

        If I can imitate it just by moving my arms and legs with a few movements for a few seconds, you can't copyright it. Copyright only applies to things like performance art choreography. Dance routines on Broadway, ballet performances, an original routine in a local theatre group, things like that. Someone doing a jig for a few seconds, however recognisable, does not constitute a copyrightable performance. Ultimately, this comes down to someone attempting to claim a signature dance move as an intellectual property, and it is not. A single dance move cannot constitute a protected work. A longer routine involving that move can, but the Milly Rock dance move used in the emote does not qualify for that, as emotes are invariably short and involve no more than one or two recognisable moves from what is normally a much larger routine. Cases where the move itself is so recognisable as to be considered by the artist to be a complete work and therefore protected have been shot down rapidly in previous efforts before they even made it to court (PBJ time, drop it like its hot, etc). The US Copyright office has been somewhat clear on this point, although the ECJ has been somewhat less clear. It's possible if this were tried in the ECJ, he might have more success. However, as it will almost certainly take place in a US court, copyright law is quite clear that the short performance used in the emote is not a protected work, and cannot be claimed under copyright law. The fact that this has been so clear previously as to never be tested in court only speaks to the unlikely odds of a positive result for Milly.

      do you think they should be able to trademark a touchdown routine? that seems ridiculous to me.

    Interesting to see this one play out.

    I always figured the copyright/trademark laws have different purposes. Trademark law, the focus is: Big Brand has a signature whatever. That signature is protected to ensure that other parties can't piggy-back the Big Brand's popularity and let consumers mistakenly think that the small-timer is associated with the Big Brand.

    In the case of Fortnite's emotes, a Trademark argument would seems a whole lot more like someone of the MacDougal clan complaining that their ancestral restaurant - with only one location, in Aberdeen - has been selling the 'Big Mac' for centuries, and McDonald's is piggy-backing the MacDougal restaurant's popularity, misleading consumers into thinking that Micky D's is associated with the MacDougals prestigious name.

    Copyright, though... the other way around? Someone has a neat idea, protects it with copyright, and that then protects them when anyone - up to and including Big Brand - says, "Oh hey, neat idea! We're always looking for neat ideas! We're taking it. And we're going to make scads of money off it. And no, you can't have any. Thanks for the idea."

    This would seem to be pretty much what's happening with the rapper who had a neat idea, which has since been taken by a much Bigger Brand.

    But because that's such a powerful tool, and so open to abuse, the copyright office puts limits on what you can copyright, because otherwise some smart-ass is going to try and copyright everything that could ever exist as their 'neat ideas.'

    Definitely reckon this will have a decent impact on the latest microtransaction revenue fad.

    I hate humanity a little more everyday for the most trivial of reasons, is what I got out of this.

    Its really going to come down to whether or not each hand moment or foot movent counts as a 'move' or if the whole thing counts as a 'move'. The emotes are not that long, and so this is probably how it's going to play out.

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