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‘Fortnite’ lawsuit: Can a rapper claim a dance?

Tribune-Review
| Friday, December 7, 2018 4:33 p.m
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Bloomberg
A player competes in the Epic Games Inc. Fortnite: Battle Royale Celebrity Pro Am in Los Angeles on June 12, 2018. MUST CREDIT: Bloomberg photo by Patrick T. Fallon,

In a world of GIFs and memes, most of us are accustomed to processing instantly the tiniest snip of human movement. We can decipher what it means, who’s doing it and how cool it is.

We see swiveling legs on YouTube, we think: Beyoncé. Crossed wrists and a wide-legged gallop with the backfield in motion: Korean pop star Psy. Interpreting even the most fragmented body language on digital platforms is a 21st-century skill, largely honed through social media.

Now, this skill is at issue in a lawsuit against the maker of “Fortnite,” the enormously popular battle-royale video game. In the suit, filed Wednesday, Brooklyn rapper 2 Milly alleges that the game stole the dance he choreographed and, by extension, has hijacked his identity.

Let’s think about that for a minute. The “Fortnite” case raises wider, existential issues about our animal selves. About how technology is shaping the fundamental, hard-wired ability we’re born with that enables us to recognize one another, through split-second gestures that make up a person’s identity. The web is full of movement portraits of all kinds, telling the kinds of stories about ourselves – about character, personal style and quirkiness – that we used to get only from still photographs. A few subtle but highly expressive cues on an animated GIF, repeated in an infinitely looping mini-video clip, are all it takes for us to read the sassy, done-with-it hauteur of Rihanna’s eye roll.

2 Milly’s case centers on a few quick, exquisitely simple moves. He’s suing Epic Games, the maker of “Fortnite,” over the use of his “Milly Rock” dance. Basically, it’s a slap with one arm, then the other; rock and roll the hips, repeat. It was featured in 2 Milly’s 2014 music video of the same name. Now, the Milly Rock – or something like looks very similar – is available for “Fortnite” players to purchase for their avatars. This is what prompted the lawsuit.

“Fortnite” is free to download; the game makes its money – an estimated $1 billion in revenue – from selling outfits (“skins”) and victory-dance “emotes” to its more than 200 million players so they can customize their avatars. The emote that resembles the Milly Rock is called “Swipe It” in “Fortnite,” and it’s a close digital version, cocked elbows, rolling hips and all.

The rapper (aka Terrence Ferguson) alleges in his lawsuit that Epic “has unfairly profited from exploiting his protected creative expression and likeness.”

The case may come down to this: Does the average person immediately associate “Swipe It” with 2 Milly? Is that dance uniquely his, and does it define his persona – his character, the way he presents himself to the rest of us?

If so, says intellectual property lawyer Paul Kilmer, “the claim under unfair competition and right of publicity is they’ll think (2 Milly) approved it. And it simulates his likeness and persona, so it may violate state or federal law of unfair competition, or a state right of publicity. Possibly he could succeed on those claims. “

Whether a dance routine really defines a person’s persona, Kilmer says, “is a very interesting question, and not one I’ve ever seen determined.”

“It will come down to the facts,” he adds. “Can he put people on the stand who will say the public associates him with these moves and nobody else. If they can make that case, then they would have a shot.”

There have been an increasing number of cases, from athletes, entertainers and other artists, concerned about the use of their looks and their persona in video game platforms, says IP lawyer Mark Sommers. The law is playing catchup with technology. “The quality of video games has become so real,” Sommers says, “that they’re able to offer products that drill down to these particular elements and depictions that previous technology did not allow.”

Also, social media has trained us to digest information so much more quickly than before, which leads Sommers to believe we’ll be seeing more cases like 2 Milly’s.

This case touches on more than potential damages or royalties for 2 Milly. It goes to how our brains process meaning. What is the smallest bit of information that tags a person? What fragment of our motor vocabulary – a walk, a hair flip – equals identity? What sliver of movement, what gesture of the hand, or even, what gesture plus time and circumstance?

“How you communicate with people has changed through texting as opposed to when you made a phone call,” Sommers says. “So the ability of people to digest information quickly and succinctly has allowed them to digest elements of identification succinctly and quickly, too.”

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