‘No one can own a dance step’ insists Epic as it fights to dismiss Fortnite dance lawsuit

Epic Games is disputing claims that it allegedly stole famous dance moves and used them as emotes in Fortnite without the consent of the performers Fresh Prince star Alfonso Ribeiro, rapper Terrance "2 Milly" Ferguson, and Russell "Backpack Kid" Horning.

For several months now, the artists behind some of Fortnite’s most iconic moves have been calling on developer Epic to compensate them or "put the actual rap songs behind the dances that make so much money as Emotes".

The Hollywood Reporter (via Gamasutra) reports that in a motion to dismiss the suit by Ferguson, Epic’s attorney Dale Cendali maintains dance moves cannot be "owned" as there’s no precedent case law a copyrighting choreography, and patents for individual dance moves cannot be made to the US Copyright Office due to creative choreographic expression.

"The Plaintiff’s lawsuit 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," wrote Cendali on Epic’s behalf.

"No one can own a dance step. Copyright law is clear 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 defence further states that as any character can use the ‘Swipe It’ emote, it has not used 2 Milly’s likeness in Fortnite.

"Plaintiff has made no allegations that Epic Games’ use of his ‘likeness’ goes beyond Swipe It. Critically, Swipe It can be used with any Fortnite character, none of which Plaintiff alleges share similar physical characteristics to him. And Plaintiff 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. These additional elements make the Swipe It emote a transformative use."

Fresh Prince of Bel-Air actor Alfonso Ribeiro and Rapper 2 Milly recently filed a lawsuits against Epic Games for replicating and selling their dance moves in Fortnite. 2 Milly was only made aware of the dance when fans contacted him over social media. He said Epic "took his craft and sold it as their own", and while he’s "not trying to ruin the game for anyone", he wants the "Swipe It" dance removed and fair compensation.

Ribeiro’s attorney, David Hecht of Pierce Bainbridge Beck Price & Hecht LLP – the same law firm representing 2 Milly – said: "It is widely recognized that Mr. Ribeiro’s likeness and intellectual property have been misappropriated by Epic Games in the most popular video game currently in the world, Fortnite."

"Epic has earned record profits off of downloadable content in the game, including emotes like ‘Fresh’," the statement added. "Yet Epic has failed to compensate or even ask permission from Mr. Ribeiro for the use of his likeness and iconic intellectual property."

Ribeiro is purportedly in the process of trying to copyright the dance as he brings suits against Epic for using his dance in Fortnite, and 2K for using it in its NBA 2K series. Interestingly, there’s no precedent case law a copyrighting choreography, and patents for individual dance moves cannot be made to the US Copyright Office due to creative choreographic expression.

About Vikki Blake

It took 15 years of civil service monotony for Vikki to crack and switch to writing about games. She has since become an experienced reporter and critic working with a number of specialist and mainstream outlets in both the UK and beyond, including Eurogamer, GamesRadar+, IGN, MTV, and Variety.

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