Rapper 2 Milly, who said in November that he was considering legal action against Epic Games for its use of his Milly Rock dance in Fortnite, has followed through and filed a lawsuit against the company. Posted by the Hollywood Reporter (via Gamasutra), the lawsuit says Epic "capitalized on the Milly Rock's popularity, particularly with its younger fans" by selling it as the "Swipe It" emote, but did not credit or compensate 2 Milly, or seek his permission to use it.
The suit begins by detailing the pop-culture popularity of both Milly Rock and Fortnite, before going on to explain the basics of Fortnite's monetization: The game is free, but in-game transactions enable the purchase of items such skins, clothes, and emotes of various rarities and costs. "Emotes are incredibly popular and are fundamental to Fortnite's success. Players purchase emotes, alongside clothing and skins, to personalize their Fortnite experience," the suit says.
"Emotes have also become popular outside Fornite. Professional athletes in soccer and other sports have based their celebrations on Fortnite emotes. Young adults, teenagers, and kids also post videos of themselves on YouTube and social media performing emotes under various hashtags, including #fortnitedance and #fortnitevideos."
Those emotes are created by "copying and coding dances and movements directly from popular videos, movies, and television shows," it continues, but without seeking consent to do so. The lawsuit addresses the Milly Rock-based "Swipe It" emote emote specifically, but also notes broader concerns about Epic's approach to creating Fortnite's dance emotes.
"Epic has consistently sought to exploit African-American talent in particular in Fortnite by copying their dances and movements," the suit states. "Epic has copied the dances and movements of numerous African-American performers, including, for example, the dance from the 2004 Snoop Dogg music video, 'Drop It Like It's Hot' (named the 'Tidy' emote), Alfonso Ribeiro's performance of his famous 'Carlton' dance on The Fresh Prince of Bel-Air television show (named the 'Fresh' emote), the dance performed by Will Smith on the same television show (named the 'Rambunctious' emote), the dance in Marlon Webb's popular 'Band of the Bold' video (named the 'Best Mates' emote), Donald Faison's signature dance move seen on the NBC television show Scrubs (named the 'Dance Moves' emote), and, most pertinent here, Terrence Ferguson's Milly Rock Dance."
And those emotes have served Epic well: The suit quotes a Bloomberg report from July estimating that Epic is on track to generate $2 billion in 2018, and that the company's valuation could rise as high as $8 billion. That's a central element of the complaint: 2 Milly said last month that he's not out to "bash [Epic] for all the millions," but David Hecht of Pierce Bainbridge Beck Price & Hecht LLP, the law firm representing him, clarified in an email that there will be some bashing going on.
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"2 Milly does not necessarily intend to bash them for trying to make money. But where revenue is earned from misappropriation or infringement, that cannot be permitted. Protecting intellectual property or one’s image may include seeking damages or injunctive relief," Hecht said. "2 Milly will certainly be seeking damages in this case. When making that comment 2 Milly did not necessarily understand the amount of money that was made from the use of his 'Milly Rock'."
The lawsuit does not commit to a specific figure but seeks actual and punitive damages, legal fees, and "further relief as the Court may deem proper," as well as a restraining order preventing Epic from "using, selling, or displaying" the "Swipe It" emote. An Epic representative said the company does not comment on ongoing litigation.
