Can a Dance Be Intellectual Property? This Fortnite Lawsuit Could Be a Test Case

December 6, 2018, 4:05 PM UTC

Any parent can tell you that even if they’re able to stop their kid from playing Fortnite, that child is going to do one of the in-game dances given any opportunity. Now a Brooklyn-based hip-hop artist is suing the creator of that game over one of those moves.

2 Milly accuses the developer of stealing his “Milly Rock” dance move and repackaging it in the game as a dance emote called “Swipe It”. Players could unlock that dance move by purchasing the game’s $10 Season Pass.

Fortnite, in July, became the latest game to generate more than $1 billion in revenue, largely through the purchase of in-game content like season passes and dance emotes. The game has 200 million registered users.

It’s the first time an artist has sued a game developer for incorporating a pop culture element into software, though it’s hardly the first time there have been complaints about it. Fortnite alone has been criticized a number of times by African-American artists who say their moves have been used as dance emotes in the game with no compensation.

Should 2 Milly prevail, it could have a notable impact on how games handle pop culture references. For instance, the Milly Rock dance move is also integrated into Take-Two Interactive Software’s NBA2K18, though 2 Milly hasn’t filed a lawsuit in response to that game. And other artists could begin demanding compensation, both for previous usage and future rights.

Legal scholars note that dance moves are generally not seen as trademarkable (though the names of those moves can be). But as law professor Alexandra Roberts notes, 2 Milly’s suit is based on copyright and alleged violation of his rights of publicity.

You can compare the Milly rock move to Swipe In in the videos below. (Be warned the 2 Milly video contains some language that’s not safe for work.)

Epic Games declined to comment.

An earlier version of this article incorrectly said trademark was at issue in the lawsuit.

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