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Epic Games has filed for the dismissal of a lawsuit brought against them by rapper 2 Milly, who claims the popular game Fortnite features a dance emote based on his choreography. The claim was made by 2 Milly before Christmas last year but has now been challenged by Epic Games’ legal team on multiple grounds including the context in which the dance move is being used and freedom of expression.
Brooklyn based Terrance Ferguson, known to the music industry and his fans as 2 Milly, claims that the Fortnite dance move the “Swipe It” is fundamentally the same as his “Milly Rock” move. Ferguson and his lawyer David Hecht are claiming that no permission was given to copy this dance and that Ferguson has received no financial compensation for his choreography being used in the wildly successful game.
Now, according to court documents released on Monday and obtained by The Verge, Epic Games has asked the judge to dismiss the case with a lengthy statement explaining how the dance move Ferguson is claiming to have a copyright on is too simple to be protected. The claim goes on to say that no one person can own a simple dance move because they are fundamental building blocks of freedom of expression.
Epic Games also stated that the context in which the dance moves are used is entirely different, explaining how Ferguson uses it while listening to music among friends but Fortnite simply uses it to allow player expression on the battlefield. Furthermore, the claim exhaustively details the exact physical motions of each dance, using this to point out that any similarities between the two are surface level observations. If both dances are thoroughly inspected, there are small differences as well as each being performed to a different tempo.
These differences may seem superfluous to players but the details of this lawsuit are incredibly important, given that Ferguson’s claim is built around the accusation that Epic Games copied his dance moves exactly. With that said, while the dance moves do have noticeable differences, it has been long understood in the Fortnite community that the “Swipe It” was a reference to Ferguson’s routine.
Epic Games’ response to the lawsuit has prompted a response from Hecht who released a statement accusing the gaming company of providing the court with conflicting information:
“Epic is essentially talking out of both sides of its mouth in its motion to dismiss: it argues that, one the one hand, the ‘Swipe-It’ emote is not the Milly Rock (which is ridiculous, as fans have long recognized the emote is a copy of Milly’s signature dance), but it also argues that, on the other hand, even if it is Milly’s dance, it is not protectable. Regarding latter point, the law is clear that dance choreography is protectable under the Copyright Act.”
Ferguson is not the first person to bring legal action against Epic Games over Fortnite dance emotes. The “Backpack Kid”, made famous by his flossing dance performed on Instagram and later with pop star Katy Perry on SNL, has also sought legal action against Epic Games for the use of his signature “Flossing” dance move. Alfonso Ribeiro, better known as Carlton from The Fresh Prince of Bel-Air, is also suing Epic. Strangely enough, that dance is from Tom Jones’ hit song “It’s Not Unusual.”