Epic Games seeks lawsuit dismissal, claims Fortnite emote doesn't copy dance step

Back in December, Brooklyn-based rapper 2 Milly a.k.a. Terrence Ferguson had **sued _Fortnite_ developer Epic Games** , claiming a move he created in 2011, which he calls Milly Rock, was used as an emote in the game without his permission. [caption id=“attachment_5338431” align=“alignnone” width=“1280”] Fortnite. Image: Twitter/Fortnite[/caption] Epic has now fought back, requesting a judge to dismiss the lawsuit stating that Fortnite’s “Swipe It” emote does not use the same move. In addition to explaining in a statement as to how the emote is different from the moves in Milly Rock, Epic claims that the allegations are untrue because according to guidance issued by US copyright authorities, simple choreographed steps can’t be owned by anyone. “[2 Milly’s] lawsuit is fundamentally at odds with free speech principles as it attempts to impose liability, and thereby chill creative expression, by claiming rights that do not exist under the law,” Epic’s lawyer Dale Cendali wrote in a motion to dismiss the suit.

However, contrary to what Epic claims to be a dance move too short to protect, 2 Milly’s lawyers in a statement claim that the dance in question is choreography and therefore protectable.

As pointed out by David Hecht, a lawyer from Pierce Bainbridge Beck Price & Hecht to The Verge, “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, but it also argues that, on the other hand, even if it is Milly’s dance, it is not protectable. Regarding the latter point, the law is clear that dance choreography is protectable under the Copyright Act.” 2 Milly is not the first prominent person to complain about Fortnite’s use of the moves. Chance the Rapper criticised the game for not including the songs behind some of its dances, giving artists a chance to share in some of Fortnite’s incredible revenue. Actor Donald Faison, whose dance from the TV show Scrubs appears in an emote, tweeted in March, “Dear Fortnite … 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 (@donald_faison) April 1, 2018

Other than specific choreography within a specific copyrighted work, dance moves can be difficult to sue over.