2 Milly v. Epic Games: When Dance Becomes an Accessory

Case Study: 2 Milly v. Epic Games

About: Epic Games (video game company)

Media: Personal computer, internet

Industry: Video game

Laws or Legal Case: Terrence Ferguson v. Epic Games, Inc. – Copyright Infringement – US District Court for the Central District of California

Website: https://variety.com/2018/gaming/news/fortnite-dance-lawsuit-1203092141/

Description:

Epic Games released the video game “Fortnite” in 2017, and saw huge success almost immediately. The game is free-to-play, meaning players do not need to pay money to play the game, so Epic Games makes money through the sale of costumes and gestures called emotes that players can use in the game. Some emotes are dances that the player characters can perform. Some of these dances have been noted to resemble famous dances which has led to court cases, including Terrence “2 Milly” Ferguson v. Epic Games (Variety).

Legal Issue at Stake:

Multiple individuals, consisting of actor Alfonso Ribeiro, online viral sensation Russell Horning, and 2 Milly, among others, took note that some of Fortnite’s dances bore a strong resemblance to dances originally performed by them. Beginning with 2 Milly in December 2018, they decided to sue Epic Games for copyright infringement. They felt that it was unfair for Epic Games to make money off of their creative work in the form of dance, without providing any sort of compensation, giving credit, or asking permission before releasing the emotes on the server. The lawsuit also notes that “they’re undermining the value of those creations for the creators. […] Now when some of those dances are done in public, they’re identified as “Fortnite” dances, not, for instance, “The Carlton” [first performed by Ribeiro]” (Variety).

Case Summary [Main Points]:

Chance the Rapper created a tweet saying Fortnite was making money off of the work of others, particularly black artists, without giving compensation or credit to those same artists (Variety).
Actor Donald Faison compared his original dance on TV show Scrubs to an emote released on Fortnite, and declared that was stolen (Variety).
2 Milly filed a lawsuit against Epic Games for the use and sale of his dance the “Milly Rock”. Two more lawsuits from Alfonso Ribeiro and Russell Horning’s mother followed shortly after (Variety).
Epic Games filed for the lawsuits to be dismissed on two grounds. First, “2 Milly cannot establish substantial similarity between his dance and the emote. Further, the Epic motion stated that copyright law does not apply to dance steps” (NBC).
The US Supreme Court ruled in a separate case that people must register with the Copyright Office before they can claim copyright infringement. This ruling changed the law surrounding copyright, namely that it was not required to be registered to file for copyright infringement. The lawsuits were then dropped (Digital Music News, Kotaku).
The Milly Rock had applied for copyright registration twice before in 2018, and “both attempts were met with denial from the Copyright Office” (yahoo!). “Ribeiro’s claim had been denied by the Copyright Office” as well by the time the lawsuits went to court (kotaku).

Industry:

Video game, television, music

Parties Involved:

Epic Games, Inc.
Terrence “2 Milly” Ferguson
Alfonso Ribeiro
Russell Horning
US District Court for the Central District of California
US Supreme Court

Laws & Legislation related to this article:

References & Works Cited

Copyright Basics. United States Copyright Office. https://www.copyright.gov/circs/circ01.pdf.

Crecente, Brian. (n.d.) ‘Fortnite’ Dance Lawsuits: The Carlton, the Floss, the Milly Rock, What Is Going On? Variety. https://variety.com/2018/gaming/news/fortnite-dance-lawsuit-1203092141/.

Desatoff, Sam. (2019, March 8). Rapper 2 Milly drops lawsuit against Epic after Supreme Court ruling. Yahoo! Finance. https://finance.yahoo.com/news/rapper-2-milly-drops-lawsuit-211100446.html.

Gach, Ethan. (2019, March 11). Fortnite Dance Lawsuits Dropped, At Least For Now. Kotaku. https://kotaku.com/fortnite-dance-lawsuits-dropped-at-least-for-now-1833208400.

Goslin, Austen. (2018, December 27). Epic Games sued for swiping ‘Milly Rock’ dance for Fortnite. Polygon. https://www.polygon.com/fortnite/2018/12/6/18129089/fortnite-dance-2-milly-rock-lawsuit-epic-games.

Marks, Tom. (2019, January 15). Can You Actually Copyright a Fortnite Dance Emote? IGN. https://ca.ign.com/articles/2019/01/15/can-you-actually-copyright-a-fortnite-dance-emote.

NBC News. (2019, February 13). ‘Fortnite’ maker pushes back against copyright lawsuit: ‘No one can own a dance step’. https://www.nbcnews.com/tech/video-games/fortnite-maker-pushes-back-against-copyright-lawsuit-no-one-can-n971121.

Reskinoff, Paul. (2019, March 4). U.S. Supreme Court Votes Unanimously: If a Copyright Registration Isn’t Finalized, You Can’t Sue. Digital Music News. https://www.digitalmusicnews.com/2019/03/04/supreme-court-copyright-registration/.

Monthly revenue generated by Fortnite worldwide from February to May 2018. Statista. https://www.statista.com/statistics/865601/fortnite-revenue/.