Rapper 2 Milly is suing the maker of Fortnite, Epic Games, for selling his signature “Milly Rock” dance as an emote called “Swipe It.” Pierce Bainbridge, the law firm representing 2 Milly, filed the complaint in the Central District Court of California today, accusing Epic of, among other things, copyright infringement, and exploiting African American talent for profit in the game.
The Milly Rock dance was first introduced into Fortnite as part of its season five battle pass, which came out in July. The dance, which was popularized in 2 Milly’s 2014 song by the same name, was rebranded as “Swipe It,” and given to players who purchased the roughly $10 battle pass and reached its Tier 63 reward. 2 Milly told Kotaku in an email at the time that he felt like his dance had been stolen and that he wished Epic had approached him about using the dance before it was added to Fortnite. He’s now suing the company for damages and to have the emote removed from the game.
“I was never compensated by Epic Games for their use of the ‘Milly Rock,’” 2 Milly said in a press release. “They never even asked for my permission. I am thrilled to have David Hecht and his team at Pierce Bainbridge representing me to help right this wrong.”
It’s unclear whether today’s lawsuit will go anywhere, but if it does it could have big consequences not just for Fortnite, which has been copying and selling dance moves from lots of artists, but other games that also sell dance emotes.
The US started protecting dances under copyright law beginning with the Copyright Act of 1976, the last time copyright law underwent a major revision. According to the lawsuit, 2 Milly applied to register his dance with the Copyright Office on December 4, but having a registered copyright isn’t a requirement for copyright protection.
2 Milly’s law firm isn’t just going after Epic about whether the company had the okay to use the dance. While there are white actors and artists whose dance moves also show up in Fortnite, the firm is citing this as a racial matter. The debate around this issue, originally raised by Chance the Rapper back in July, has been gaining momentum again as 2 Milly and others have continued to speak out about it. At a Scrubs reunion panel during the Vulture Festival last month, actor Donald Faison, who played Turk on the show, told the audience that he never got any money from Epic for his “Poison” dance from the show which ended up becoming Fortnite’s default dance emote. “If you want to see it, you can play Fortnite, because they jacked that shit!” he said of the dance he made up on the spot during production.
“I think they believe that they can railroad African American talent because they doubt that there will be any legal consequence,” Hecht told Kotaku in an interview over the phone. He said he believes there’s a general expectation in the business world that individual artists, even if they’re famous, can’t stand up to a large corporation like Epic, calling it an alarming trend. Hecht’s firm recently represented the Nigerian jewelry maker Chris Aire who reached a settlement against French luxury maker LVMH over its use of his “Red Gold” trademark.
When reached by Kotaku, a spokesperson for Epic said it had no comment on the matter.
While a large part of the lawsuit filed revolves around copyright claims, it also alleges that Epic violated 2 Milly’s publicity rights under California law. It’s intended to protect a person’s right to control how their likeness or aspects of their identity are used for commercial purposes. 2 Milly’s lawsuit claims the sale of his dance created the false impression that he endorsed Fortnite or consented to his likeness being used in the game. It also alleges that Epic digitally copied the dance from 2 Milly’s own performance of it, rather than trying to simply recreate it from scratch. The likeness claim may seem like a stretch given that, while 2 Milly’s dance appears in the game, he does not.
The firm is also suing Epic on behalf of another of the firm’s clients, Lenwood “Skip” Hamilton. The former football player and wrestler has accused Epic of stealing his likeness to create the character of Cole Train from Gears of War against his wishes. The suit, which is also against Microsoft, which published the games, and Lester Speight, a former co-worker of Hamilton’s who went on to voice the character, was filed in January of 2017 and is still ongoing. Epic has not commented on that case either.