Rapper sues makers of video game Fortnite over dance moves
2 Milly's lawsuit claims wildly popular game used his moves without compensation or credit
Rapper 2 Milly has filed a lawsuit against the makers of Fortnite, saying they are illegally using a dance he created in their wildly popular video game.
The Brooklyn-based rapper, whose real name is Terrence Ferguson, alleges that North Carolina-based Epic Games misappropriated his moves without compensation or credit, in the lawsuit filed Wednesday in federal court in Los Angeles.
The lawsuit states that the dance known on Fortnite as "Swipe It," one of many that players can buy for their characters, is taken from the "Milly Rock," a dance he came up with in 2011 that caught on as a craze in the summer of 2015 after the release of a song and video of the same name.
Ferguson says that the game both steals his creation and, as a result, appropriates his likeness. He's asking for a judge's order that the game stop using the dance, and for damages to be determined later.
"They never even asked my permission," 2 Milly said in a statement.
Epic Games spokesperson Nick Chester declined to comment.
Dance moves difficult to sue over
The fight-to-the-finish game Fortnite quickly became one of the most popular in history after its 2017 release.
Players can use real-world money to buy in-game currency that gets their characters outfits, gear or "emotes" — brief dances that have become a cultural phenomenon performed on playgrounds, in social media posts and in the scoring celebrations of professional athletes.
The suit launched by 2 Milly is not the first to result from a prominent person's complaint over Fortnite's use of dance moves.
Chance the Rapper criticized the game for not including the songs behind some of its dances, giving artists a chance to share in its wealth.
Actor Donald Faison, whose dance from the TV show Scrubs appears in an "emote," tweeted in March, "I'm flattered? Though part of me thinks I should talk to a lawyer."
Dear fortnite... I’m flattered? Though part of me thinks I should talk to a lawyer...—@donald_faison
Other than specific choreography within a specific copyrighted work, dance moves can be difficult to sue over.
Jennifer Rothman, a professor at Loyola Law School in Los Angeles, said in an email that 2 Milly may have a potential copyright claim or a right-of-publicity claim if the dance is a signature move that identifies him and would lead players to think he endorsed the game. But Epic Games' free-speech rights may trump those claims.
"There are likely to be First Amendment and fair-use defences ... in the context of a video game," Rothman said, "which is understood as fully protected speech, on par with motion pictures and books."