Epic Games, the company that makes the smash hit video game “Fortnite Battle Royal,” finds itself involved in a battle outside of the game defending against a copyright infringement lawsuit filed in Central District of California federal court by rapper 2 Milly, Case No. 2:18-cv-10110-AS. 2 Milly alleges that Epic Games offers its players the opportunity to purchase a victory dance for their characters to perform which is an exact duplication of his signature move the “Milly Rock.” Epic calls the move the “Swipe It” in the game.
While it is undeniable that the dance moves provide both a direct and indirect monetary gain, the question here is whether Epic Games is committing copyright infringement.
2 Milly also alleges that Epic Games has copied Snoop Dogg’s “Drop It Like It’s Hot” moves, and the famous “Carlton” dance originated by actor Alfonso Ribeiro on the television hit show “The Fresh Prince of Belair.” According to 2 Milly, this evidences Epic Games pattern of behavior copying popular dances without permission or licensing the moves from the creators.
Indeed, Ribeiro, the Instagram-famous “Backpack Kid” originator of a move dubbed the “Floss,” and rapper BlocBoy JB with his move the “Shoot,” all have their own lawsuits pending against Epic Games. All four suits ask the court to block Epic Games from further use of the dance moves, award Defendants the money Epic Games earned from sale of the moves, and to award punitive damages and attorneys’ fees.
Epic Games maintains they have done nothing wrong and has moved to dismiss the lawsuit. It’s Epic Game’s position that a single dance step or movement cannot be copyrighted, and that the “Swipe It” move is different from the “Milly Rock” step in any case.
Epic Games points out that even famous moves such as the “Hustle Step,” “Basic Waltz Step,” “Grapevine,” and “Classic Ballet’s Second Position,” are merely “building blocks of free expression,” and not independently entitled to protection as intellectual property.
The Choreography Copyright Act, section 102(a) (4), looks at trademark and copyright infringement in “choreographic works.” It defines choreography as the arrangement and composition of dance movements in related series and patterns, organized in such a way that it presents a coherent whole. It further implies that choreography having ordinary commonplace gestures or movements, social dances, athletic movements, or motor activities may lack sufficient original authorship in order to be qualified for copyright protection. Examples of gestures or commonplace movements that cannot be registered under the Copyright Act choreographic works include:
For the dance moves in question to be clearly protected, they must be sufficiently original and have key elements such as a presentation before an audience, textual or musical accompaniment, be a series of dance movements rather than a single move or idea, including facial expressions, or gestures in a defined sequence or a story conveyed through movement. Though iconic, these Plaintiffs will have to prove their moves are sufficiently original when compared to other dances, and that the moves are their own singular expressive work rather than just a building block of an “idea, procedure, process, system, method of operation, concept principle, or discovery” which would not rise to the level of being copyrightable pursuant to the Copyright Act, 17 U.S.C. §102(b).
We can expect 2 Milly to oppose Epic Game’s Motion to Dismiss sometime in March, 2019, and for the court to hold a hearing on the motion in early April, 2019 . If the court rules in favor of Epic Games, it will be game on for the continued use of the Swipe It in Fortnite without credit or compensation to 2 Milly. If the court rules in favor of 2 Milly, the case will continue. If that’s the case, look for more artists more artists to file claims against Fortnite.
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