3L student Kara Krakower’s article on copyright protections for dance choreography (originally published in the Fordham Intellectual Property, Media & Entertainment Law Journal) was cited in a Washington Post article regarding a pending lawsuit over dance moves in the popular online video game Fortnite.
In the summer of 2015, rapper 2 Milly went “Milly Rocking” on every block in Brooklyn, turning the hip-hop two-step into the viral dance of the summer. People started doing the “Milly Rock” on fire escapes, on top of cars, in the end zone after scoring touchdowns. Rihanna was doing it. Travis Scott did it. “If you ain’t Milly Rockin’, you ain’t doing nothing,” 2 Milly, whose real name is Terrence Ferguson, told Vice in 2015.
But then one day last July, some unwanted “Milly Rockers” were brought to the rapper’s attention: Fortnite avatars.
The moves appeared unmistakable, 2 Milly said. The dancing avatar swung her left arm, then her right, spun her fists in a circular motion, then twisted her hips and did it all again. In Fortnite, the massively popular battle-royal video game, the “dance emote” was not called the “Milly Rock.” Instead, the move was called “Swipe It,” a victory dance that players could unlock after purchasing an add-on package for 950 “V-bucks,” or about $9.50. Players recognized the dance immediately — just as they had so many other popular viral dances that appear to be included in Fortnite but were made famous by mostly black artists.
Case law on copyright cases for choreographed works is notoriously thin and murky in the first place, according to a 2018 Fordham Intellectual Property, Media and Entertainment Law Journal article.