Fortnite may have given artist Marshmello a big boost – playing to 10 million people at a single (virtual) concert will do that for a musician – but the game and its publisher Epic Games remain under fire from other artists, who are suing the company for some of the in-game dance moves. Now the publisher is hitting back, filing a motion to dismiss a case filed by rapper 2 Milly over his signature ‘Milly Rock’ dance.
“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,” wrote Epic’s attorney in a motion to dismiss, according to Billboard. “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.”
Under Epic’s logic, it doesn’t matter if Fortnite’s ‘Swipe It’ move is identical to ‘Milly Rock’ – although the company’s attorney tackled that question too, suggesting that while 2 Milly’s move “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”, the Fortnite move involves “(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”.
(If that’s hard to picture in your mind as you’re reading this, flag down a passing 10 year-old and ask them to demonstrate.)
If you’re interested in the legal arguments around this (and if you’re a manager working with an artist who comes up with original dance moves, you will be!) Reed Smith’s Gregor Pryor recently wrote an article for news site GamesIndustry, noting that the US Copyright Office issued clear-cut guidance in 2017: “They said that ‘short dance routines consisting of only a few movements or steps’ cannot be registered, ‘even if a routine is novel or distinctive.’ They specify that ‘social dance steps and simple routines’ will not be protected by copyright ‘even if they contain a substantial amount of creative expression.’”
In Europe, however, the situation is less clear: past cases involving snippets of news stories as well as photographs suggest more sympathy to the idea of original work “if it reflects the author’s personality… if the author was able to express his creative abilities in the production of the work”.
Without wishing to be naive, there’s what’s legally correct, and what *feels* right, in terms of the way Epic Games interacts with musicians and dancers. The Marshmello concert (and tie-in ‘skins’) show the power of working positively with a musician. When Fortnite’s dance emotes are inspired by moves that have been devised and sent viral by other people, you would hope that Epic Games (and other games publishers) would find a way to credit and work commercially with them. Even if, as Pryor pointed out, such deals might open more cans of worms if there are disputes over who, exactly, came up with the original move.
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