'Fortnite' Publisher Urges Dismissal of Rapper's Suit: "No One Can Own a Dance Step"

Epic Games says 2 Milly's moves are unprotectable, aren't similar to what's actually in the game and his lawsuit represents an attempt to chill free speech.
Courtesy of Epic Games

A flurry of lawsuits over allegedly wiped dance routines in the blockbuster game Fortnite generated a lot of discussion about intellectual property. On Monday, moving for dismissal in the complaint brought by Terrence "2 Milly" Ferguson, Epic Games had a message for a California federal court.

"Plaintiff'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," wrote Dale Cendali, attorney for Epic. "No one can own a dance step. Copyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy."

2 Milly was the first to sue. Alleging his dance step known as "Swipe It" was misappropriated through a special feature that allows Fortnite players to emote his moves, he's followed by others with claims, including Fresh Prince of Bel-Air star Alfonso Ribeiro.

Since 2 Milly filed first, he's also the one to step up now and face Epic Games' argument that no one can hold a monopoly on a swinging arm movement. Although copyright law allows choreography to be protected, Epic seizes upon Copyright Office guidance that "simple routines" are not copyrightable or eligible for registration.

"Also, copyright does not protect mere ideas and concepts, which are free for all to use, but rather only the expression of those ideas," continues the dismissal brief. "The Dance Step is just such an unprotectable idea as Ninth Circuit courts have held in similar situations involving movements, choreography, and poses. As the Dance Step is not protectable, there is nothing to compare to Fortnite, and the works necessarily are not substantially similar."

Even putting that aside, Cendali sees too much difference.

"As shown by the accompanying video clip, the Dance Step consists of a side step to the right while swinging the left arm horizontally across the chest to the right, and then reversing the same movement on the other side," she writes. "By contrast, as shown in 26 another video clip, Swipe It consists of (1) varying arm movements, sometimes using a straight, horizontal arc across the chest, and other times starting below the hips and then traveling in a diagonal arc across the body, up to the shoulder, while pivoting side to side on the balls and heels of the feet, (2) a wind up of the right arm before swiping, and (3) a rolling motion of the hands and forearms between swipes."

Employing California's SLAPP statute, intended to deter lawsuits impinging First Amendment activity on matters of public interest, Epic Games seeks to shift the burden of proving a likelihood of success in this case to 2 Milly.

Not to be ignored, the plaintiff is also asserting a violation of the right of publicity, meaning protection of one's likeness.

Epic Games asserts that such a claim is preempted by copyright law, and even if not, under the Rogers test, because the emote is artistically relevant to Fortnite, 2 Milly's claim fails without any showing of expressly misleading conduct. The Rogers test derives from Rogers v. Grimaldi, a 1989 decision concerning a lawsuit brought by the actress (and pretty good dancer) Ginger Rogers over the Federico Fellini film Ginger and Fred.

"Plaintiff has made no allegations that Epic Games’ use of his 'likeness' goes beyond Swipe It," the dismissal motion adds. "Critically, Swipe It can be used with any Fortnite character, none of which Plaintiff alleges share similar physical characteristics to him. And Plaintiff has not asserted that he has appeared in a similar setting to Fortnite, namely he has not fought in a battle royale using weapons to kill opponents. These additional elements make the Swipe It emote a transformative use."

Here's the full brief, the starting point on a new discussion about many of the moves made in intellectual property in the past few decades.