Earlier this week, the rapper 2 Milly filed a lawsuit claiming that Fortnite—the most popular video game in the world—swiped his dance move. The case fuels ongoing controversy over video game companies’ unlicensed use of existing hip-hop dances, which players can purchase to customize their in-game avatars. But can these companies freely copy and sell dance moves without payment to the artist?
Stephen McArthur is a video game and copyright lawyer in Los Angeles.
The groove in question is the “Milly Rock,” a simple, two-step dance in which the arms circle while the hips swing from side to side. Popularized by 2 Milly in 2014, it became a viral hip-hop phenomenon. Earlier this year, Epic Games copied the dance, renamed the move the “Swipe It,” and offered it on Fortnite for an additional charge of about $5.
Fortnite avatars were doing the Swipe It for several months before an inevitable social media uproar prompted Epic Games to remove it. Even Grammy winner Chance The Rapper weighed in, arguing that the original songs should always be included with the dance moves in games. That way, creators could receive compensation via a music licensing fee.
“I don’t feel it’s appropriate that my art (dance), which is a big part of culture, is basically stolen,” 2 Milly told the video game news site Kotaku. “The appropriate thing to do is compensate me with a fair amount for my addition to the game.”
Now 2 Milly has enlisted a firm that has a history of suing Epic Games over misappropriation and filed lawsuit in a California district court. The question at stake: How much ownership does the creator of a dance move actually have over its commercial use?
Copyright is a form of intellectual property law that grants protection to the authors or creators of “original works of authorship,” which include literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software, and architecture. While copyright law does explicitly protect “choreography,” that definition is fairly narrow: “social dance steps and simple routines” are not included.
Federal courts have consistently agreed, ruling that only a series of related dance moves and patterns that organize into a coherent whole work can count as a “choreography” for copyright protection. The Second Circuit has ruled that “the basic waltz step, the hustle step, and the second position of classical ballet are not copyrightable.” Similarly, the US Copyright Office explicitly states that “[e]xamples of social dances not protected by copyright include ballroom dances, folk dances, line dances, square dances, and swing dances.”
Here’s another way of thinking about it: While a book is, of course, copyrightable subject matter, you can’t copyright a single sentence. Likewise, a choreographed ballet that constitutes a coherent, full work is more likely to be protected by copyright law than a single dance move like the moonwalk, the hustle step, or—yes— the Swipe It.
The Electric Slide Copyright Fiasco
While no one has prevailed in a copyright lawsuit by arguing that they own a simple dance move, that hasn’t stopped people from trying. The Electric Slide, for example, is significantly more robust than the Milly Rock. Created in 1976 by Richard Silver, the viral line dance is comprised of 18 steps. In 2007, Silver attempted to have a YouTube video removed pursuant to the Digital Millennium Copyright Act because it contained about ten seconds of footage of dancers doing the Electric Slide. What particularly agitated Silver was his belief that the dancers were performing his moves “incorrectly.”
The Electronic Frontier Foundation came to the rescue of the boogieing masses, suing Silver and asking the court to protect the public’s free speech rights to perform the Electric Slide. Silver surrendered, agreeing to officially open the Electric Slide to the public under a Creative Commons license.
Could 2 Milly Win?
Since 2 Milly likely won’t prevail under copyright law, his lawyers have added two additional theories of liability: (1) Right of Publicity infringement, and (2) Unfair Competition. While these claims may be slightly stronger than the copyright claim, they’re unlikely to succeed for a couple of reasons. Even though 2 Milly originally popularized the Milly Rock, the dance has since entered the cultural ethos, gone viral, and been included in dozens of unrelated rap music videos and performed by countless people on social media, including Rihanna, Chris Brown, and Wiz Khalifa. It is no longer a dance associated solely with him. Furthermore, Epic Games wisely changed the name of the dance from the Milly Rock to the Swipe It. Had Epic Games called it the Milly Rock, 2 Milly would have very strong claims for misappropriation.
There is also a significant business ethics issue here. It is arguably unethical cultural appropriation for a multi-billion dollar company to use the creative work of an African-American artist without any compensation simply because the company can legally get away with it. I expect that this, and the accompanying negative publicity, will ultimately be the impetus for Epic Games to change its policy of borrowing dance moves without compensating their creators.
Unfortunately for 2 Milly, while Fortnite’s former use of the Swipe It dance may have been ethically questionable, it was not illegal—at least as far US copyright law is concerned. Nonetheless, I suspect that 2 Milly’s lawyers will be able to negotiate a settlement based on the negative publicity surrounding Epic Games’ cultural appropriation. My verdict in the saga of the Milly Rock rip-off: Although Fortnite did, in fact, swipe it, 2 Milly will still get rocked in court.
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