The Brief: 2 Milly has filed a lawsuit against Fortnite creator Epic games for monetizing his signature dance move: the Milly Rock as an emote.

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Terrence Ferguson, known as 2 Milly is suing Epic for appropriating his dance move known as the Milly Rock as a Fortnite emote renamed the “Swipe It.” Although Fortnite is free to play, optional features such as emotes can be purchased as part of “battle packs” or with V-Bucks. Epic Gamers has earned over $1 billion so far from Fortnite in-app purchases alone.

2 Milly’s filed this lawsuit on Wednesday Dec. 5 in federal court in Los Angeles. It states that Epic “should not be able to profit from Ferguson’s fame and hard work by its intentional misappropriation of Ferguson’s original content or likeness.” 2 Milly told TMZ “They took my craft and they sold that. Whatever they made off that specific emote, ‘Swipe It,’ that’s what I want there.”

It is unclear whether 2 Milly will win this case. Dance moves are not usually protected under copyright. Rather, only longer choreographies consisting of a series of many dance moves can be copyrighted. Dance moves have legally been classified like words and colors: building blocks of art that dancers and choreographers can then use in longer, copyrightable pieces. What is unique in this case, is how Epic has integrated the dance into a digital video game rather than more traditional outlets for dance moves such as performances or music videos. There are also questions about their methods of animating the dances and the legality of that process.

Either way, this lawsuit brings up key issues surrounding art and copyright in the digital age. As video game creators monetize dance moves from black artists without their permission, issues of race, economics, ethics, and fair use come into play. The Milly Rock also appeared in the video game NBA 2k18. Fortnite also turned Snoop Dogg‘s “Drop It Like It’s Hot” and BlocBoy JB’s “shoot” dance moves into emotes under different names. 2 Milly’s lawsuit specifies that Epic Games  “consistently sought to exploit African-American talent in particular in Fortnite by copying their dances and movements.”

Chance The Rapper, who has been vocal about this issue in the past, tweeted his support for 2 Milly.

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