2 Milly isn't the only person suing Epic Games for unauthorized usage of dance moves in their wildly popular (and profitable) Fortnite battle royale game, but he was the first. With the lawsuit going forward, Epic Games is pushing hard for a dismissal, citing that the rapper's claims are not correct and he does not have the rights to what's seen in the online title.
"Plaintiff's lawsuit is fundamentally at odds with free speech principles as it attempts to impose liability, ad thereby chill creative expression, by claiming rights that do not exist under the law," said Epic Games' attorney Dale Cendali. "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 rapper claims in his suit that the "Swipe It" emote was used in the game for a profit without his consent. Others followed suit (no pun intended), but Epic's legal team is maintaining that he doesn't have a case: "Also, copyright does not protect mere ideas and concepts, which are free for all to use, but rather only the expression of those ideas," continues the dismissal brief. "he Dance Step is just such an unprotectable idea as Ninth Circuit courts have held in similar situations involving movements, choreography, and poses. As the Dance Step is not protectable, there is nothing to compare to Fortnite, and the works necessarily are not substantially similar."
He added that the in-game emote and 2 Milly's dance were varied enough to not be an exact replication, which they claim tears down the rapper's entire allegation. "As shown by the accompanying video clip, the Dance Step consists of a side step to the right while swinging the left arm horizontally across the chest to the right, and then reversing the same movement on the other side," she writes. "By contrast, as shown in 26 another video clip, Swipe It consists of (1) varying arm movements, sometimes using a straight, horizontal arc across the chest, and other times starting below the hips and then traveling in a diagonal arc across the body, up to the shoulder, while pivoting side to side on the balls and heels of the feet, (2) a wind up of the right arm before swiping, and (3) a rolling motion of the hands and forearms between swipes."
The motion for a dismissal has officially been issued adding, "Critically, Swipe It can be used with any Fortnite character, none of which Plaintiff alleges share similar physical characteristics to him. And Plaintiff has not asserted that he has appeared in a similar setting to Fortnite, namely he has not fought in a battle royale using weapons to kill opponents. These additional elements make the Swipe It emote a transformative use."0comments
You can read the entire claim here for more of the legal jargon to decide for yourself who has the best defense.
Thanks, Hollywood Reporter!