Second Amended Complaint, Ferguson v. Epic Games, Inc., No. 2:18-cv-10110 (C.D. Cal. Feb. 8, 2019), complaint hosted by Bloomberg Law.
Defendant’s Motion to Dismiss, Ferguson v. Epic Games, Inc., No. 2:18-cv-10110 (C.D. Cal. Feb. 11, 2019), document hosted by Heitner Legal, P.L.L.C.
Are dance moves protected by copyright? Terrence “2 Milly” Ferguson, a professional rapper and the plaintiff in this case, believes that they are. In 2014, Ferguson created a dance move called the “Milly Rock,” which he performed as part of a music video for a song of the same name. Since then, the Milly Rock has been adapted and performed by other celebrities, including singer-songwriter Rihanna in a dance-off competition and football player Deshaun Watson as part of a touchdown celebration.
Ferguson alleges that the Milly Rock’s popularity has caught the attention of Epic Games, Inc. (“Epic”), developer of the popular online multiplayer battle royale game, Fortnite. He has filed suit in federal court against Epic and its employees, claiming that Fortnite’s “Swipe It” emote “intentionally mimic[s] Ferguson performing the Milly Rock,” and that Epic has infringed on his copyrights and trademarks by selling Swipe It as part of an optional set of downloadable content in Fortnite. He is seeking a share of Fortnite’s profits and an injunction preventing Epic from using Swipe It, among other things.
Epic, however, contends that the Milly Rock is not protected by copyright as it is a “short dance routine consisting of only a few movements or steps,” which is not copyrightable according to the Compendium of United States Copyright Office Practices. Epic characterizes the Milly Rock as a “dance step,” analogous to a series of words or shapes, which, if copyrighted, “would impede rather than foster creative expression.” Moreover, Epic claims that Swipe It is not “substantially similar” to the Milly Rock, pointing to the differences in movements, tempo, and context.
According to The New York Times, Ferguson has recently been joined by several other creators of dance moves suing Epic, claiming that emotes used in Fortnite violate their copyrights. For example, Alfonso Ribeiro, a television personality and actor, has filed suit claiming that Fortnite’s “Fresh” emote infringes on his copyrights to the “Carlton” dance as performed on the television comedy The Fresh Prince of Bel-Air. Nonetheless, the United States Copyright Office recently refused Ribeiro’s application to register a copyright for the Carlton dance, stating that the dance steps were “a simple routine that is not registrable as a choreographic work.”
While courts are not bound by decisions made by the Copyright Office, a divided Ninth Circuit panel noted in Inhale, Inc. v. Starbuzz Tobacco, Inc. that courts should defer to the Copyright Office “to the extent that those interpretations have the ‘power to persuade.’” The Copyright Office’s rejection of Ribeiro’s copyright registration may thus pose a significant hurdle to artists, like Ferguson, who are seeking to enforce copyrights against Fortnite for monetizing their dance moves without authorization.