Commentary about the Milly Rock and Fortnite Copyright Controversy

On November 14, 2018, the morning show CBS This Morning ran a segment about the copyright controversy surrounding Epic Game’s use of dance moves (particularly the Milly Rock) in its popular video game Fortnite. Although the video clip is no longer available online, here’s a written summary of the segment.

I was featured in the segment as a legal expert. Afterwards, some people asked me to expound upon my views regarding the controversy. Some news outlets have also misquoted me. For these reasons, you can find answers to questions some may have and my thoughts regarding this matter below.

What is the Milly Rock?

The Milly Rock is a dance move that primarily involves rhythmic movement of the forearms and legs. It was created by the hip-hop artist and rapper 2 Milly. The move is seen throughout the music video for his song “Milly Rock x 2 Milly.” 

After the video’s release in August 2014, the Milly Rock became very popular. It was reproduced in dance routines on YouTube. Beyoncé and her dancers performed it during the halftime show for the 2016 Super Bowl. It has even been used by professional athletes in their celebratory dances.

The last video game I played was Sonic the Hedgehog on a Sega Genesis. What is Fortnite?

For me, it was Minecraft, but only because my godsons forced me to play. Fortnite is a hugely popular video game, which was developed by Epic Games, Inc. (a North Carolina corporation) and which was first released in 2017. Although there are two versions of the game, the more popular version is Fortnite Battle Royale. In this version, players play either solo or in groups in a battle royale until the last players are left standing.

The game can be played both online on a computer or on video game consoles. What makes Fortnite unique, as compared to other popular video games, is that it is completely free to play.

If it is free to play Fortnite, how does Epic Games make money?

According to Investopedia, players can spend money on in-game currency, called “V bucks,” which can be used to make in-game purchases. Players cannot use V-bucks to buy anything that will actually affect their performance in the game. Instead, the currency is used to purchase things like cosmetic skins, pre-released game modes for game characters, and dances (known as emotes), which range from 200 to 2,000 V-bucks ($2 to $20).

According to Bloomberg, as of July 2018, Fortnite was on track to generate $2 billion by the end of the year.

Video of Fortnite’s Swipe It emote 

What is the controversy involving 2 Milly and Fortnite? 

In Fortnite, until recently, players were able to purchase an emote called Swipe It (which you can view above). It is essentially the Milly Rock. Since emotes are amongst the items that can be purchased by players, Epic Games probably generated millions of dollars from its use of the Milly Rock.

To note, as of today, the Swipe It emote is no longer available for purchase.

Does 2 Milly have any legal remedies? If so, will he face any hurdles?

One possible remedy relates to copyright law. 2 Milly can try to sue for copyright infringement. According to the Copyright Act (“Act”), copyright protection subsists automatically in anything that is (1) original, (2) a work of authorship, and (3) fixed in a tangible medium of expression. The Act lists eight categories of works of authorship, one of which is choreographic works. If anyone infringes upon the rights of the owner of a copyrighted work (ex. by reproducing it without permission), the owner of that work can sue for copyright infringement.

You need to register a work to sue for copyright infringement. One hurdle is whether 2 Milly can register the Milly Rock with the Copyright Office. Based on the legislative history of the Act, regarding the registration of choreographic works, the Copyright Office takes this position: “[s]ocial dances, simple routines, and other uncopyrightable movements cannot be registered as separate and distinct works of authorship, even if they contain a substantial amount of creative expression.”

That being said, because the Milly Rock is contained in a music video, he could register the video with the Copyright Office and claim authorship for everything he created in the video (including the lyrics and choreography).

Another hurdle faced by 2 Milly is whether the courts would consider the Milly Rock to be a choreographic work. No case has actually answered the question whether an original dance step could be considered to be a choreographic work.

What are your thoughts regarding the view of the Copyright Office and legislative history of the Copyright Act?

I think it is prejudicial. The Office states that “registrable choreographic works are typically intended to be executed by skilled performers before an audience” and that “[b]y contrast, uncopyrightable social dances are generally intended to be performed by members of the public for the enjoyment of the dancers themselves.” I don’t believe the intention of the creator of a dance should have any effect on whether it should be registrable.

Furthermore, I have several questions. First, what are skilled performers? I have seen dance shows where judges have called performers of hip-hop and street dance (like breaking, popping, and locking) untrained. These comments completely ignore the fact that there is a lot of technique involved in these types of dances. 

Second, what does the term audience mean? If it means one that sits in a theater in seats, then certain types of dance were not performed before audiences for years. 

Third, why can’t social dances or simple routines be considered to be works of authorship? There seems to be a bias based on sophistication.

Lastly, to piggyback off the last point, was the Congress that wrote the Act aware that street dance existed? These forms of dance, which were created in the late 1960s and early 1970s, were in their infancy when Congress passed the Act in 1976. If Congress was aware that these types of dances existed and still stated in the legislative history that social dances and simple routines were not registrable, then they may have been biased against or indifferent to street dances. 

Back to 2 Milly. Did he have to register his dance to gain copyright protection?

No, he doesn’t have to register with the Copyright Office to gain copyright protection. Copyright protection subsists automatically so long as the requirements are met. If someone creates a work of authorship that is sufficiently original and fixed in a tangible medium of expression, it is copyrightable.

Let’s say hypothetically the Milly Rock is considered to be a choreographic work or work of authorship. If 2 Milly created the Milly Rock, it is original. The Milly Rock was fixed in a tangible medium of expression because something tangible (maybe a phone or video camera) was used to record the Milly Rock x 2 Milly video. Thus, under this scenario, the Milly Rock would qualify for copyright protection.

Did 2 Milly have to register his dance soon after he released the Milly Rock x 2 Milly video to sue for copyright infringement? 

To reiterate, you need to register a work to sue for copyright infringement. Registration can happen at any time, but it’s usually best to register within three months of publication. This is known as timely registration.

Timely registration of a copyrighted work allows the copyright owner to pursue additional remedies for copyright infringement. One remedy is statutory damages, whereby if a party is found to have willfully infringed upon the work of another, the copyright owner could gain up to $150,000 for each case of infringement. If there is no timely registration, one can only sue for actual damages and profits.

In 2 Milly’s case, I could not find a registration with the Copyright Office for his video (which was made public on YouTube in August 2014). This means that in order to have timely registered his work, he would have had to had done so by November 2014. Thus, as of today, he couldn’t sue for statutory damages. However, he could sue for actual damages and profits from Epic Games for use of the Milly Rock as an emote in Fortnite.

Let’s say the courts find that Epic Games engaged in copyright infringement. What about fair use?

Fair use is a defense against copyright infringement permitted under the Act. I won’t get too much into it, but it’s an analysis that requires the balancing of four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The short answer is no. I don’t believe Epic Games can successfully use fair use as a defense.

Would you like to clarify any of the points you made during the CBS This Morning segment?

I sure do! I was quoted saying the following: “There’s a lot of case law, suits surrounding the copyright of music. Lyrics. Sounds. There’s a full body of case law related to that. But regarding choreographic works, that does not exist.”

The number of cases and lawsuits related to music copyright is limitless, most likely because the music industry is a very profitable business. In my statement, I meant that the amount of case law and lawsuits for the copyright for choreographic works, in comparison to that for music copyright, is not as robust.

To further clarify, I did not mean that there was no case law related to the copyright of choreographic works. There is. In fact, two cases explored whether a yoga sequence could qualify as a choreographic work. One of the courts, the 9th Circuit, determined that the answer was no because the sequence was an idea, process, or system to which copyright protection may not extend under the Act.

As a former dancer, what are your thoughts regarding this controversy?

First, to a dancer, attribution is sometimes more important than money. Perhaps 2 Milly just wanted acknowledgment that he was the creator of the dance move. Perhaps he simply wanted Epic Games to call Swipe It by its actual name.

Second, who knows how much money he could have made if Epic Games used the term Milly Rock in the game? Millions of people could have looked up the Milly Rock, gained an interest in 2 Milly, and paid money to see him on tour. Furthermore, there are other people making money off emotes because there are Fortnite dance classes. What if 2 Milly wanted to conduct dance classes because of the fame he received from Fortnite?

Third, even if the courts determine that Epic Games did not engage in copyright infringement, it did engage in cultural appropriation. The company took dances from various cultures (like Psy’s Gangnam Style, the Shoot Dance, the Carlton Dance, or the Cossack Dance), changed the names so many would not know the origin of the dance, and profited off of them. This is a textbook case for cultural appropriation.

Lastly, I hope 2 Milly pursues a lawsuit against Epic Games. It would help choreographers and dancers realize that dance is valuable, not only socially, but also monetarily. They could know their worth when negotiating with other parties.

How can we find out more about the copyright law related to choreography?

You can listen to my interview with the NPR podcast Marketplace Tech regarding the 2 Milly/Fortnite controversy, listen to my interview with the Poplaw podcast, read blog posts I wrote about Beyoncé and Les Twins, or contact my law firm at 347-946-0597 or info@jllaw.net.

Updates:
On November 29, 2018, it was announced that 2 Milly retained the law firm Pierce Bainbridge Beck Price & Hecht LLP to pursue legal action against Epic Games.

On December 5, 2018, 2 Milly initiated his lawsuit against Epic Games by filing a complaint with the District Court for the Central District of California.

On March 7, 2019, in light of the Supreme Court’s decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com (which requires that there be a successful copyright registration prior to the commencement of an infringement lawsuit), 2 Milly has voluntarily dismissed his lawsuit against Epic Games.