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Fortnite makers sued by rapper 2 Milly over dance moves

| Wednesday, Dec. 5, 2018, 10:39 p.m.
A player competes in the Fortnite: Battle Royale Celebrity Pro Am on June 12, 2018, in Los Angeles. (Bloomberg photo by Patrick T. Fallon)
Bloomberg
A player competes in the Fortnite: Battle Royale Celebrity Pro Am on June 12, 2018, in Los Angeles. (Bloomberg photo by Patrick T. Fallon)

LOS ANGELES — Rapper 2 Milly filed a lawsuit Wednesday against the makers of Fortnite, saying they are illegally using a dance he created in their wildly popular video game.

The Brooklyn-based rapper, whose real name is Terrence Ferguson, alleges that North Carolina-based Fortnite-maker Epic Games misappropriated his moves without compensation or credit in the lawsuit filed in federal court in Los Angeles.

The lawsuit states that the dance known on Fortnite as “Swipe It,” one of many that players can buy for their characters, is taken from the “Milly Rock,” a dance he came up with in 2011 that caught on as a craze in the summer of 2015 after the release of a song and video of the same name.

Ferguson says that the game both steals his creation and as a result appropriates his likeness. He’s asking for a judge’s order that the game stop using the dance, and for damages to be determined later.

“They never even asked my permission,” 2 Milly said in a statement.

Epic Games spokesman Nick Chester declined to comment.

The fight-to-the-finish game Fortnite quickly became one of the most popular in history after its 2017 release.

Players can use real-world money to buy in-game currency that gets their characters outfits, gear or “emotes,” brief dances that have become a cultural phenomenon performed on playgrounds, in social media posts and in the scoring celebrations of professional athletes.

2 Milly is not the first prominent person to complain about Fortnight’s use of the moves.

Chance the Rapper criticized the game for not including the songs behind some of its dances, giving artists a chance to share in its wealth.

Actor Donald Faison, whose dance from the TV show “Scrubs” appear in an “emote,” tweeted in March, “Dear fortnite … I’m flattered? Though part of me thinks I should talk to a lawyer.”

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

Jennifer Rothman, a professor at Loyola Law School in Los Angeles, said in an email that 2 Milly may have a potential copyright claim or a right-of-publicity claim if the dance is a signature move that identifies him and would lead players to think he endorsed the game. But Epic Games’ free-speech rights may trump them.

“There are likely to be First Amendment and fair use defenses … in the context of a video game,” Rothman said, “which is understood as fully protected speech, on par with motion pictures and books.”

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