Epic Games has filed to dismiss rapper 2 Milly’s copyright infringement claim against its alleged use of the Milly Rock in Fortnite.
Terrence “2 Milly” Ferguson first announced plans to take legal action against Epic back in November, after seemingly nabbing his Milly Rock dance and reselling it as the Swipe It. The fight against Epic’s appropriation of black artists’ dance moves has only increased, with names like The Fresh Prince of Bel-Air star Alfonso Ribeiro taking the fight to Fortnite.
But Epic Games has doubled down. It wants to shut down Ferguson’s lawsuit, calling a violation against free expression and citing again that individual moves cannot be legally owned by an individual or entity.
"Plaintiff’s lawsuit is fundamentally at odds with free speech principles as it attempts to impose liability, and thereby chill creative expression, by claiming rights that do not exist under the law,” said Epic Games in its response.
“No one can own a dance step. Copyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy,"
The response also calls into question whether the Milly Rock and Swipe It are even that similar. Rather pedantically, Epic begins to list a number of minor differences that mean the dances are, technically, not the same.
Even the purpose of dancing is brought into question, as Epic explained: “Whereas Plaintiff uses the Dance Step while listening and dancing to music with his friends, Swipe It's role in Fortnite is to allow players to express themselves on the battlefield.
“These differences are particularly pronounced given how short the Dance Step and Swipe It are. The works simply are not substantially similar."
Epic is looking to dismiss with prejudice, meaning 2 Milly would be unable to file a similar lawsuit in future. But there’s more than just legal trouble brewing beneath this argument - by continuing to appropriate and profit from dance moves taken from black artists, Epic Games is continuing a long tradition of American companies profiting off the exploits of the country’s minority groups.