Earlier this week, the rapper 2 Milly filed a lawsuit claiming that Fortnite—the most popular video game in the world—swiped his dance move. The case fuels ongoing controversy over video game companies’ unlicensed use of existing hip-hop dances, which players can purchase to customize their in-game avatars. But can these companies freely copy and sell dance moves without payment to the artist?
The groove in question is the “Milly Rock,” a simple, two-step dance in which the arms circle while the hips swing from side to side. Popularized by 2 Milly in 2014, it became a viral hip-hop phenomenon. Earlier this year, Epic Games copied the dance, renamed the move the “Swipe It,” and offered it on Fortnite for an additional charge of about $5.
Fortnite avatars were doing the Swipe It for several months before an inevitable social media uproar prompted Epic Games to remove it. Even Grammy winner Chance The Rapper weighed in, arguing that the original songs should always be included with the dance moves in games. That way, creators could receive compensation via a music licensing fee.
“I don’t feel it’s appropriate that my art (dance), which is a big part of culture, is basically stolen,” 2 Milly told the video game news site Kotaku. “The appropriate thing to do is compensate me with a fair amount for my addition to the game.”
Now 2 Milly has enlisted a firm that has a history of suing Epic Games over misappropriation and filed lawsuit in a California district court. The question at stake: How much ownership does the creator of a dance move actually have over its commercial use?
Copyright is a form of intellectual property law that grants protection to the authors or creators of “original works of authorship,” which include literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software, and architecture. While copyright law does explicitly protect “choreography,” that definition is fairly narrow: “social dance steps and simple routines” are not included.