More Than Just a Game

The issue of intellectual property used within video games is in the news again. If you haven’t already heard, wildly popular video game Fortnite features a dance called “Swipe It” that is the center of a pending lawsuit. Brooklyn-based rapper 2 Milly is claiming he created the dance in 2015 and the game’s creators swiped it from him. 2 Milly, whose real name is Terrence Ferguson, filed the lawsuit in federal court in Los Angeles against Epic Games, the maker of Fortnite, alleging copyright infringement, right of publicity, and unfair competition claims.  Additionally, the lawsuit accuses Epic Games of appropriating several dances in Fortnite (“emotes”) without permission, including Alfonso Ribeiro’s “Carlton Dance” from “The Fresh Prince of Bel-Air” (renamed Fresh), Snoop Dogg’s 2004 dance from “Drop It Like It’s Hot” (retitled “Tidy”), and Donald Faison’s dance from the TV show “Scrubs,” (renamed “Dance Moves”).

2 Milly’s dance, dubbed the “Milly Rock,” consists of a left arm swing, a right arm swing, a circular motion of both arms, and simultaneous alternative hip swings – repeated over and over again.  But is it copyrightable?  To successfully state a copyright infringement claim and collect damages, 2 Milly will generally have to show that he owns a valid copyright to the dance and that Epic Games copied constituent elements of the dance that are original. There is also the question of whether Fortnite’s Swipe It dance infringes on 2 Milly’s brand as an artist. After all, 2 Milly became known and recognized for his Milly Rock dance and gained fame and popularity for it on a viral level. While the Fortnite avatars participating in the dances do not use 2 Milly’s name and do not appear to look like 2 Milly, there could be an argument that the use of Swipe It infringes on the rapper’s likeness and persona as an artist, who is particularly known for a particular dance. On top of all of this, Epic Games gains a commercial advantage by its use of Swipe It since gamers are prompted to pay approximately $9.50 to “unlock” the Swipe It emote on Fortnite.

While a dispute over the ownership of a dance move portrayed in a video game may seem novel, it is part of a long trend of similar past – and most likely future – disputes. Indeed, the 2 Milly lawsuit was followed shortly thereafter by a lawsuit from Alfonso Ribeiro. Copyright infringement lawsuits have been filed and some are currently pending from tattoo artists against video game studios over the reproduction of players’ tattoos in games. College athletes have battled over the unpaid use of their likenesses in college sports video games. Even Lindsay Lohan tried to sue Rockstar Games over the use of a character she says was based on her likeness.

As video games become more realistic and more intertwined with popular culture (and social media), the issues of intellectual property being used within other intellectual property will show their face again and again. This is especially true as game studios push virtual reality and as consumers expect to see their real worlds reproduced faithfully in video game format. Intellectual property licensing has been a part of the video game world for a long time. But as the content being incorporated into those games transitions from traditional properties like music and brands to more nebulous properties like dance moves and personal likenesses, creators on both sides of the divide need to be aware of their rights and need to be aware of where their properties are being used. In many circumstances, the law is unsettled or there are issues of first impression. Creators who sleep on their rights may miss out on potential revenue streams or may risk the loss of their rights to the public domain. Creators who utilize third-party works may face disruptions or event litigation as works they thought were in the public domain are claimed by their creators. Intellectual property licensing is here to stay in the video game world, and those who are aware of this fact and use it to their advantage are more likely to find themselves in the winner’s circle.