Over the past four years, the Milly Rock has gone from street dance in Brooklyn to soccer celebration in London. And the video game Fortnite has garnered 200 million players, heights of popularity few games have ever seen. So perhaps it was to be expected that Fortnite characters would start Milly Rocking in the game.
There’s a little problem, however — Fortnite’s creators, Epic Games, called the dance emote “Swipe It.” And now the Milly Rock’s creator, rapper 2 Milly, is suing Epic for copyright infringement and violations of California’s right of publicity statutes.
“This isn’t the first time that Epic Games has brazenly misappropriated the likeness of African-American talent,” according to David L. Hecht, partner at Pierce Bainbridge. “Epic cannot be allowed to continue to take what does not belong to it.” Hecht also told Variety about another client, Lenwood “Skip” Hamilton, who is pursuing similar claims against Epic for using his likeness as the “Cole Train” character in their “Gears of War” franchise. And “Scrubs” actor Donald Faison pointed out similarities between a dance he created for Bell Biv DeVoe’s song “Poison” and another dance emote used in Fortnite.
While players can purchase the dance emotes, Epic is not sharing any of that money with the dance’s creators. “They never even asked for my permission,” 2 Milly said. “I am thrilled to have David Hecht and his team at Pierce Bainbridge representing me to help right this wrong.”
With so many people already doing the Milly Rock, it may seem odd to try and enforce intellectual property rights in dance moves. But any original form of expression, including choreography, is eligible for copyright protection. And it doesn’t take registration with the U.S. Copyright Office to enforce those protections — the work just needs to be fixed in some tangible form. And the Copyright Office notes that “Video recordings of a performance” (like the Milly Rock video linked above) is an acceptable form of fixation for choreographic works.
While copyright law only protects “choreographic works,” and not individual dance steps or simple routines, it’s unclear how a court would classify the Milly Rock, or Epic’s use of the dance in Fortnite.