Fortnite Emotes Are Leading To Legal Headaches For Epic Games

My analysis of 2 Milly’s claims against Epic Games

James Shockley
Dec 7, 2018 · 4 min read
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The “Swipe It” Emote

Today is a day where I get to enjoy a little slice of nerd heaven. I finally get to talk about video games and use that very expensive piece of diploma paper on my wall at the same time. Mom would be proud.

Last week, rapper 2 Milly announced that he had hired David L. Hecht of Pierce Bainbridge to pursue claims against Epic Games, creators of hit video game Fortnite, over their use of his signature dance move the “Milly Rock.” In their statement on BusinessWire, Pierce Bainbridge stated that they would be pursuing claims against Epic for the misappropriation, use, and sale of the “Milly Rock” as downloadable content available in Fortnite. While this is the first instance of a dance move creator pursuing legal action against Epic, it probably won’t be the last.

First, here’s a little background information: Fortnite is a battle-royale style shooting game that I keep writing about because I might be addicted. In the game, users may purchase emotes. Emotes are dances and gestures that your character can perform for a little bit of fun while they’re on the battefield.

The emote that 2 Milly has an issue with is called “Swipe It.” This emote is clearly based off of the “Milly Rock,” which was first featured in the music video for the 2 Milly song of the same name. Hecht states “This isn’t the first time that Epic Games has brazenly misappropriated the likeness of African-American talent. Our client Lenwood ‘Skip’ Hamilton is pursuing similar claims against Epic for use of his likeness in the popular ‘Cole Train’ character in the Gears of Wars video game franchise.” 2 Milly was never compensated nor did Epic ask for his permission.

And 2 Milly isn’t the only artist this has happened to. BlockBoy JB’s dance move “The Shoot” was featured as an in-game emote and labelled as “Hype.” But is there anything artists like 2 Milly can do about Fortnite’s use of their dance moves?

2 Milly’s two most likely claims would be either trademark or copyright infringement. We’ll start with the possibility of a trademark infringement claim. Trademarks are designs, logos, signs, or phrases that identify the source of a product or service. Businesses and individuals use trademarks to distinguish themselves in the market place.

A wide variety of things can be trademarked. McDonald’s has a trademark on their golden arches, The Coca-Cola Corporation has a trademark on the name “Coca-Cola” and its iconic stylized logo, and Tiffany & Co. even has a trademark on Tiffany Blue. While many things can be trademarked, dances cannot. Dances are not used to identify the origin of goods or services.

However, you can trademark the names of dance moves. It appears the phrase “Milly Rock On Any Block” is in fact trademarked. Unfortunately for 2 Milly, he cannot trademark the actual dance and Epic did not actually use the name “Milly Rock.” This should be enough for Epic to avoid 2 Milly’s potential trademark infringement claims.

Now, moving on to the potential copyright issue. Copyrights protect original works of authorship fixed in a tangible medium. This can include literary, musical, artistic, and even choreographed works. 2 Milly’s “Milly Rock” is presumably an original work and it was fixed in a tangible medium when it was recorded for his music video. However, the U.S. Copyright Office has made clarifications as to what choreographed works can actually be protected.

In Copyright Office Circular 52, guidelines for copyrightable dance are explained. Certain categories of dance and movement are not eligible to be protected by copyright. This includes individual movements. Individual movements, or dance steps by themselves, are not copyrightable. Some examples include the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet.

Most likely, the “Milly Rock” would be considered an individual movement by the U.S. Copyright Office and would thus not be protected by copyright. For a copyright on a choreographed dance, there must be a series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole.

It seems that 2 Milly’s claims are unlikely to succeed. However, Epic’s use of popular dances has gained the attention of several creatives who are looking for remedies to these issues. Artists like Chance the Rapper have even suggested using the artists’ actual songs and giving them a cut of the emote sales. Hopefully a solution can be found that allows Epic to profit while respecting the work of creatives.

Professionally Unqualified

James Shockley

Written by

Attorney. Kentuckian. Just a guy trying to write more.

Professionally Unqualified

We like to hear ourselves talk, and we like to read things we write. We hope you enjoy it too.

James Shockley

Written by

Attorney. Kentuckian. Just a guy trying to write more.

Professionally Unqualified

We like to hear ourselves talk, and we like to read things we write. We hope you enjoy it too.

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