Epic Games files to dismiss rapper 2 Milly’s Fortnite dance lawsuit

    
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On the other hand, it's possible that this is the price you pay for playing Fortnite

Epic Games has taken its next step in its legal tango with the growing list of artists who have filed lawsuits over the studio’s use of their dances as Fortnite emotes, according to new court documents highlighted by The Hollywood Reporter. In them, Epic’s attorney Dale Cendali claims that the lawsuit filed by rapper 2 Milly (whose Milly Rock routine was lifted by Epic for Fortnite’s Swipe It emote) 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,” and as such, Epic argues, the case should be dismissed.

The document continues to claim that “No one can own a dance step” on the grounds 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 dismissal brief attempts to bolster Epic’s case by noting differences between 2 Milly’s dance and the Swipe It emote while also countering 2 Milly’s assertion of “a violation of the right to privacy, meaning protection of one’s likeness” with an argument that includes the amusing point that 2 Milly “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.”

This could end up being a crucial development in this ongoing saga, as if Epic succeeds at having 2 Milly’s lawsuit dismissed, it will likely influence the lawsuits subsequently filed by Alfonso Ribeiro and Russell “Backpack Kid” Horning.

Source: The Hollywood Reporter via GamesIndustry.biz. Thanks, Kinya!
Update
In fact, it seems the Ribeiro lawsuit has already hit a snag; as the AP reports, the copyright office has denied his copyright claim. “The denial from the U.S. Copyright Office was revealed Wednesday in a motion to dismiss Ribeiro’s lawsuit against Take-Two Interactive, the makers of NBA 2K16, which Ribeiro says illegally makes use of the dance,” says the publication. “The document denying the copyright says the moves in the ‘Carlton’ represent a simple dance routine rather than a work of choreography, which can be copyrighted.” Thanks, Scott!
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Bryan Correll

at 2 Milly “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.”

I don’t have a dog in this fight (I’ve never played Fortnite and had never even heard of 2 Milly before this thing came up,) but I salute Epic’s legal team for this line.

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Mewmew

Free speech and fair use and all that is horse manure when you’re taking these dances that others made and charging people for them.

These dances are in *a lot* of other games that aren’t being sued because they’re a free part of the game and just in the normal emotes. These other games aren’t charging people for them (they’re in a lot of free to play games as free emotes to use). Nobody has ever cared. It wasn’t until Epic was making loads of money off them that people started to care.

I support the artists and think Epic very much is profiting off the creative work of other people – and yet the law gets tricky around dance copyright. The question the Judge will have to decide is if these are long enough to be considered a “dance” or they’re basically a single dance move. Epic is right in that in the past you haven’t been able to copyright a single dance move.

They are definitely unique moves but they really may not be long enough to be able to be copyrighted. The dance law covers a series of moves that become an entire choreography. The artists may be out of luck here.

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Alberto

Yep of your going to Charge directly for the actual Dance Move itself..you need to pay the creator of that Dance.that is literally how its supposed to works.

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Sorenthaz

I think freedom of speech/fair use goes out the door when it’s being monetized without royalties. In that case it’s no different than trying to sell a song from an artist without giving them (or their record company/whatever) anything. This wouldn’t be an issue if it were something like the dances in MMOs where it’s just a funny emote that you can do and it has no extra cost associated with it. It’s all because this is being monetized that it’s an issue in the first place, and that argument is trying to ignore the greater issue.

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Phone_Guy

Fair use is one thing. But Epic charges money for these dance moves. If they were openly available for players to use or acquire through game play I think they might have more of a solid case. The biggest problem here is that they are taking popular routines and selling them to players. They are generating income off these routines which makes the issues less about fair use.

Andy McAdams
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Andy McAdams

Hrm. I just read the whole motion to dismiss. I think Epic makes a pretty compelling case based on precedent. Choreography has been copyrighted in the past, but it’s whole works not seconds-long chunk. The motion makes references to several other cases that were similar scenarios and the logic used by the previous courts to deny the copyrights hold here, I think. One was that a yoga company couldn’t copyright a specific series of 26 different poses because the movements were too simple — and I think a series of 26 yoga poses is more copyrightable than 5 seconds of arm swinging, no matter how distinctive.

I think the only thing Milly might have going for him is if he can somehow make the argument that his dance move is copyrightable because it compromises the “heart of the work” — which I think is going to be pretty hard to for him to assert after the fact.

The funny part is that he could succeed in claiming a copyright of the choreography of the song in its entirety, and still fail in claiming here against Epic because the moves are too simplistic and basic to copyright.

Source: https://www.copyright.gov/fair-use/more-info.html

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agemyth 😩

No matter who wins, copyright law sucks.

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Darthbawl

Very true, copyright/patent/trademark systems need a very healthy dose of fixing. And toss in the DMCA as well.

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3dom

On the other hand, countries without strict copyright laws produce zero to none interesting books, music, games, software startups, medicine because all of it is being replicated without restrictions and royalties and there are basically no markets for intellectual property.

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rafael12104

Well, Epic better get off their ass and wrap up this trivial stuff.

Here is a quick vid on the Apex Twitch Rivals tourney yesterday. And Ninja’s team won. Yup. Epic’s top influencer aside from Tfue won.

Apex Legends is just more entertaining to play and watch as you can see.

One more note. If you watch long enough you will see that Vis has scrolling ads on his stream now. Dr. Pepper, Gieco etc. etc.

*Sigh* what a career choice. Lol.