The Fortnite dance move that spawned a lawsuit
Game sells dance moves that add to appeal, so should their originators get a cut?
A lawsuit filed against the maker of “Fortnite” by the New York rapper 2 Milly is taking aim at one of the more popular and colorful aspects of the smash-hit videogame: the celebratory dances players buy for a few bucks.
“Fortnite” is among a handful of shooter games in which players can take a break from the heat of battle to make their characters bust a move. Many of the dance moves, also known as “emotes,” mimic real-life dances like the running man and the floss.
Those dances are lucrative. While the “last-man standing” mode of “Fortnite” is free, sales of emotes, costumes and other add-ons have helped Epic Games Inc. generate more than $2 billion (U.S.)
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in revenue since it launched in mid-2017, according to industry tracker SuperData.
Now 2 Milly is suing for an unspecified cut of the profits. He and another artist, Chance the Rapper, say Epic incorporates dance moves without their originators’ permission, and the works of African American artists in particular. That charge has sparked debate in the game community over which moves are acceptable to replicate and which ones warrant a creator’s permission. The origins of many popular dance moves are murky. A spokesman said Epic doesn’t comment on ongoing litigation. Epic, which counts Tencent Holdings Ltd., Walt Disney Co. and others as investors, and recently raised money at a valuation of nearly $15 billion, doesn’t make public its financial data.
The suit, filed Dec. 5 in California district court, is the latest legal tussle for game developers attempting to keep their works culturally relevant. Activision Blizzard Inc. was sued last year by the maker of Humvee for allegedly including trademarked vehicles in its “Call of Duty” games. Take-Two Interactive Software Inc. was sued in 2016 by a tattoo business claiming the company unlawfully reproduced copyrighted tattoos in its “NBA 2K” series. Both suits are pending.
2 Milly, whose real name is Terrence Ferguson, is suing Epic for selling the “Milly Rock,” a dance move he says he created in 2011. Epic calls the move in question “Swipe It” and sold it in a $10 package of virtual goods over the summer.
The suit alleges “Fortnite” unlawfully steals from several dance creators. The complaint names rapper Calvin Cordozar Broadus, Jr., better known as Snoop Dogg, as well as the actor Will Smith; Alfonso Ribeiro, who performed the eponymous Carlton dance while on the sitcom “The Fresh Prince of BelAir”; and Donald Faison, who starred in “Scrubs.”
Mr. Ferguson also argues the company violated his right under California common law to control the commercial distribution of his likeness.
The U.S. Copyright Act of 1976 covers the art of dance. It limits protection to original choreographed works, defined as a series of organized dance movements and patterns. Last year, the U.S. Copyright Office issued fresh guidance, saying it “cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive.”
Still, a court could choose to side with Mr. Ferguson, Case Western Reserve University law professor Aaron Perzanowski said. “The Copyright Office’s guidance isn’t binding,” he said. “Courts can make their own determination as to whether or not a work is protected.”
Analysts say pop-culture references make videogames more engaging, driving up spending on virtual goods. Gamers world-wide across all platforms spent $78 billion on microtransactions last year, up nearly 10% from 2016, according to SuperData estimates.
“Fortnite” regularly taps into trends. It added a dance move from the new Disney film “Ralph Breaks the Internet.” Last month, the game sold virtual National Football League jerseys for players’ avatars. In those cases, Epic was in partnership with the organizations.
Cole Walsh, a high-school senior in Corte Madera, Calif., said he has spent about $70 on a few dozen dance moves in “Fortnite” over the past year so he can taunt his friends when he offs their avatars during a match.
“It’s a comical moment to take away from the uber-competitive style of the game,” he said. “I don’t think it would be as popular as it is without the dances.”