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‘Fortnite’ Creator Says ‘Milly Rock’ Dance Isn’t Protectable (1)

Feb. 12, 2019, 2:44 PMUpdated: Feb. 12, 2019, 6:52 PM

The creator of “Fortnite” didn’t infringe rapper 2 Milly’s copyright because his “Milly Rock” dance isn’t copyrightable, Epic Games told the U.S. District Court for the Central District of California Feb. 11.

Even if it is, the Milly Rock and the allegedly infringing Fortnite animation aren’t substantially similar, Epic said in a motion to dismiss 2 Milly’s complaint. The rapper, whose legal name is Terrence Ferguson, said he created the Milly Rock dance in 2014.

Epic sells “emotes,” specific animations for Fortnite’s in-game avatars. Fortnite began selling the “Swipe It” emote, which 2 Milly asserts is identical to the Milly Rock, in 2018. 2 Milly sued Epic for copyright, trademark, and right of publicity claims.

The lawsuit is one of three alleging Epic profits directly from sales of Fortnite moves they invented and which are tied to their personas. Actor Alfonso Ribeiro, widely known for his role as Carlton in 1990s TV sitcom “The Fresh Prince of Bel-Air,” sued Fortnite for allegedly cribbing “the Carlton Dance” in an emote. Russell Horning, also known as “Backpack Kid,” has alleged Epic ripped off the viral dance move known as “Flossing.”

‘Unprotectable Movements’

Choreography can merit copyright protection, but individual dance moves generally have not been protectable, copyright attorneys have said. The right-of-publicity claims, which give individuals control of their image in commerce, may be the strongest arguments in the lawsuits, they said.

Epic argued in its motion to dismiss the lawsuits that the Milly Rock is unprotectable as an individual dance step or simple routine. The company compared it to other “unprotectable movements” such as “the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet.”

Swipe It and the Milly Rock aren’t substantially similar because Swipe It includes additional movements and the Milly Rock is “performed at a significantly quicker tempo,” Epic said in its filing.

Epic also said the Copyright Act should pre-empt 2 Milly’s non-copyright claims and the First Amendment should prohibit them. California’s laws against frivolous suits aimed to chill free speech and expression means 2 Milly must prove a probability of success to proceed.

Fortnite’s use of Milly Rock is transformative since it “has distinctive and expressive content beyond alleged use of the step,” Epic said in seeking to toss the right-of-publicity claims. Unfair competition and trademark claims fail because Swipe It “is artistically relevant to Fortnight,” it added.

Epic’s answers to the other two complaints are due Feb. 22.

Kirkland & Ellis LLP represents Epic. Pierce Bainbridge Beck Price & Hecht LLP represent Ferguson.

The case is Ferguson v. Epic Games, Inc., C.D. Cal., No. 2:18-cv-10110, motion to dismiss filed 2/11/19.

(Updated with additional reporting)

To contact the reporters on this story: Blake Brittain in Washington at bbrittain@bloomberglaw.com; Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com; Keith Perine at kperine@bloomberglaw.com