American rapper 2 Milly has filed a lawsuit in California against Fortnite creator Epic Games over the apparent use of his ‘Milly Rock’ dance in the smash video game.
The lawsuit was filed over the alleged ‘misappropriation, use and sale’ of the dance. 2 Milly, real name Terrence Ferguson, alleges that the Fortnite emote dubbed ‘Swipe It’, available during Season 5 of the hugely successful game, was an unauthorised recreation of his dance.
Epic games sold the ‘Swipe It’ emote for around $5 (£3.95), which allowed players to perform the dance in-game. The Swipe It emote is no longer available for purchase, but can still be used by owners of the emote.
“This isn’t the first time that Epic Games has brazenly misappropriated the likeness of African-American talent. Our client Lenwood ‘Skip’ Hamilton is pursuing similar claims against Epic for use of his likeness in the popular ‘Cole Train’ character in the ‘Gears of War’ video game franchise,” partner at Pierce Bainbridge, David L. Hecht, who is representing Ferguson in the lawsuit said in a statement. “Epic cannot be allowed to continue to take what does not belong to it.”
“They never even asked for my permission,” Ferguson said. “I am thrilled to have David Hecht and his team at Pierce Bainbridge representing me to help right this wrong.”
The lawsuit, which seeks unspecified damages and an injunctive relief to remove the dance, comes after a growing backlash against the use and sale of dances apparently used without permission.
“Fortnite should put the actual rap songs behind the dances that make so much money as Emotes. Black creatives created and popularised these dances but never monetised them,” said Chicago musician Chance the Rapper in July. “Imagine the money people are spending on these Emotes being shared with the artists that made them.”
Donald Faison, who played Chris Turk in US medical comedy Scrubs, claimed that Fortnite ‘jacked’ his ‘Poison’ dance he performed ad-hoc on the show.
The legal framework over copyrighting dance moves is complex. “At a high level, yes, you can copyright choreography,” Gregor Pryor, partner and music lawyer at international law firm Reed Smith, told The Telegraph. “Copyright protects an act of dance, in the UK it forms part of a dramatic work; a piece of dance or mime. Those dance moves can become original. There is no question in my mind that certain dance moves are original.”
Fortnite has become a cultural phenomenon and now has over 200 million registered players worldwide. Epic has made a over a reported $1bn in revenue on the game, largely through the sale of cosmetic items such as dances and costumes.
Epic Games said: “We do not comment on ongoing litigation.”