Fortnite may be the world’s most popular video game, with 200 million players and $1 billion in revenue, but for 2 Milly, it’s just the game that stole his signature dance move. The latest version of Fortnite adapts the Brooklyn rapper’s viral 2015 dance, the Milly Rock, as an “emote” for avatars called Swipe It. “My dance is my signature,” the rapper, born Terrence Ferguson, who sued Epic Games in U.S. District Court, tells Rolling Stone. “Everybody would tell you, from here to Alaska, ‘Hey, that’s the Milly Rock.’ I don’t mind people doing it in their videos. What I do mind is when somebody takes what I created and sells it.”
The role-playing, zombie-killing game allows avatars to buy a variety of looped, animated dance moves to celebrate victories and taunt opponents. Some of the moves are original to the game, like Flippin’ Sexy, in which a player spins in the air and lands in a come-hither position; others borrow from viral YouTube dances, like Dr. Turk’s goofy dance on TV’s Scrubs and Snoop Dogg’s steering-wheel move in his “Drop It While It’s Hot” video.
Thanks to the move, which involves distinctive arm-swinging and hip-twisting, the “Milly Rock” video went viral on YouTube, racking up more than 18 million views to date; stars from Rihanna to Travis Scott have done it onstage, and NFL players have used it for touchdown dances. “People say, ‘I see people doing your dance in YouTube videos, so you going to sue them?’ It’s like promotion, really — it’s spreading the brand,” 2 Milly says. “But when you actually sell [what] somebody else created, it becomes theft.”
Also suing Fortnite this week, claiming it uses their dances without permission: the mother of Russell Horning, also known as the Backpack Kid, who popularized a viral move called the Floss, and Alfonso Ribeiro of The Fresh Prince of Bel-Air, who is known for the “Carlton dance.” Both are represented by lawyer David L. Hecht, who also filed the suit on behalf of 2 Milly two weeks ago. All three dancers have also sued Take-Two Interactive for allegedly using their moves in NBA 2K18. A rep for Take-Two declined to comment to Rolling Stone on the pending litigation.
But winning a suit over a dance move is not so straightforward — it’s even more challenging than Marvin Gaye’s estate winning its case against Robin Thicke for using portions of “Got to Give It Up” in his smash “Blurred Lines.” “It’s not remotely a slam dunk,” says Christine Lepera, an attorney who represents Drake, Timbaland and others. “You cannot copyright certain dance moves that are generic. From what I’ve seen online, I’ve done these [Milly Rock] moves in hip-hop [dance] class for years — it’s a pivot, heel-out, heel-out, and swing your arms.”
Dancers and choreographers can copyright moves, as long as they are “fixed in a tangible medium of expression” — meaning they are publicly known in a video or movie. The estates of major dancers, from Michael Jackson to Bob Fosse, have registered these copyrights over the years. And legal precedent protects the creators. In 1986’s Horgan vs. Macmillan, a U.S. Court of Appeals ruled that photographers could not publish images of well-known The Nutcracker moves without permission from choreographer George Balanchine’s estate; 2 Milly’s attorney cites a non-dance-related U.S. Court of Appeals ruling, in 1992, when singer Bette Midler prevented a car commercial from using an imitation of her voice.
The question is whether 2 Milly’s 2015 move is fully formed enough to constitute intellectual property. “There’s not a lot of case law on this,” says Gerald L. Sauer, a copyright attorney with Sauer & Wagner in Los Angeles. “Commonplace movements and gestures aren’t covered. Yoga positions: no. All these celebratory moves and dances in the NFL — those are not going to be covered. The Village People spelling out letters with their arms — that’s not going to qualify. [Courts] want to see a registrable choreographed work executed by skilled performers before an audience.”
Fortnite gives the option to buy dance moves, many familiar, from TV shows to Fred Astaire’s iconic jump-and-heel-click. As creators recognized their moves in the game, they complained on Twitter: Scrubs’ Faison half-jokingly wondered in April if he should “get a lawyer.” 2 Milly contacted attorneys after Fortnite’s Battle Royale Season 5 Battle Pass came out in July.
That same month, Chance the Rapper suggested Fortnite was the latest in a long line of corporations appropriating African-American culture. “Fortnite should put the actual rap songs behind the dances that make so much money as Emotes,” he wrote on Twitter. “Black creatives created and popularized these dances but never monetized them. Imagine the money people are spending on these Emotes being shared with the artists that made them.”
Some dance organizations have been meticulous about protecting their copyrights. Julie McDonald, founder of McDonald/Selznick Associates, an agency that represents prominent choreographers such as Vincent Paterson and Toni Basil, says the theater union Stage Directors and Choreographers Society and certain prominent estates “will shut you down” over cases of dance-move theft. But Hollywood choreographers, who work on movies and TV shows, never formed a union and have less clout for protecting their work. “We do what we can,” she says, “but there are no guidelines, no basic terms and agreements.”
In the December 5th complaint, 2 Milly’s attorney, David L. Hecht, argues, “Epic has unfairly profited from exploiting Ferguson’s protected creative expression and likeness.” (Epic Games reps say they won’t comment on pending litigation.) In a phone interview, Hecht says he plans to emphasize 2 Milly’s “right of publicity,” suggesting Fortnite used the rapper’s likeness without permission, in addition to the dance-move intellectual property. “I will say you can absolutely copyright choreography,” he adds, “and you can leave it there.”