Earlier this week rapper 2 Milly filed a lawsuit alleging that Fortnite – the world's most popular video game – stole his dance step. The case continues to cause controversy over the unlicensed use of hip-hop dances by video game companies, which players can buy to customize their in-game avatars. But can these companies freely copy and sell dance steps without payment to the artist?
Stephen McArthur is a video game and copyright lawyer in Los Angeles.
The groove in question is the "Milly Rock", a simple two-step dance in which the arms circle as the hips sway from side to side. It became known in 201
Fortnite avatars made the swipe it for several months before an unavoidable social media uproar prompted Epic Games to remove it. Even the Grammy winner Chance The Rapper intervened, arguing that the original songs should always be included in the dance steps of the games. In this way, creators could receive compensation for a music licensing fee.
"I do not think it's appropriate that my art (dance), which is a big part of the culture, is basically stolen," Milly told video game news site Kotaku. "The best thing to do is compensate me with a fair amount for my addition to the game."
Now, 2 Milly has hired a company that has in the past sued Epic Games for embezzlement and filed suit in a lawsuit California County Court. The question at stake is how much ownership does the creator of a dance train actually use commercially?
Copyright is a form of intellectual property that protects authors or creators of 'original works of authorship'. These include literary, dramatic, musical and artistic works such as poetry, novels, films, songs, computer software and architecture. Although copyright explicitly protects the "choreography", this definition is quite narrow: "Social dance steps and simple routines" are not included.
The federal courts agree that only a series of related dance movements and patterns can be organized into a coherent whole work that can be considered a "copyright" for copyright protection. The Second Circuit has ruled that "the basic waltz pace, the hustle pace and the second position of classical ballet are not copyrighted." Similarly, the US Copyright Office specifically states that "[e] examples of social dances not protected by copyright" include ballroom dances, folk dances, line dances, quadrangle dances, and swing dances.
Here's another way to think about it: while a book is protected by copyright, you can not copyright a single sentence. Similarly, a choreographed ballet that is a coherent whole is more protected by copyright than a single dance step such as the Moonwalk, the Hustle-Step or – yes – the Swipe It. The Electric.
Slide Copyright Fiasco
Although no one has won a copyright suit by arguing that he has a simple dance move, it has not stopped people from trying. For example, the Electric Slide is much more robust than the Milly Rock. The viral line dance was designed in 1976 by Richard Silver and consists of 18 steps. In 2007, Silver attempted to remove a YouTube video in accordance with the Digital Millennium Copyright Act, as it contained recordings of dancers doing Electric Slide for about ten seconds. What particularly upset Silver was his belief that the dancers were "wrong."
The Electronic Frontier Foundation came to the rescue of the masses, suing Silver and calling on the court to protect the rights of the public for the performance of rights Electric Slide. Silver capitulated and agreed to officially open the Electric Slide under a Creative Commons license.
Could win 2 Milly Win?
Since Milly 2 is unlikely to enforce copyright, his lawyers have added two additional liability theories: (1) Violation of the right of publication and (2) unfair competition. Although these allegations may be slightly stronger than the copyright claims, they are probably unsuccessful for several reasons. Although Milly had originally popularized Milly Rock, dance has now entered the cultural ethos, becoming viral, and has been included in dozens of rap music videos screened by countless social media such as Rihanna, Chris Brown, and Wiz Khalifa. It is no longer a dance that is only connected with it. In addition, Epic Games changed the name of the dance wisely from Milly Rock to Swipe It. If Epic Games had called it Milly Rock, Milly 2 would have a very high claim to embezzlement.
There is also an important business ethics problem here. It's probably unethical cultural appropriation for a multi-billion dollar company to use the creative work of an African-American artist without compensation just because the company can handle it legally. I assume that this, and the associated negative advertising, will ultimately be the catalyst for Epic Games to change its policy of borrowing dance movements without compensating its creators.
Unfortunately for 2 Milly, while Fortnite's earlier Swipe It dance was used to be ethically questionable, it was not illegal – at least in terms of US copyright law. Nevertheless, I suspect that 2 Milly's lawyers will be able to negotiate an agreement based on negative publicity regarding the cultural appropriation of Epic Games. My conclusion in the saga of the rip-off of Milly Rock: Although Fortnite has actually done it, 2 Milly is still shaken in court.
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