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.
