Rapper 2 Milly lawsuit says "Fortnite" video game steals his dance

LOS ANGELES - Rapper 2 Milly filed a lawsuit Wednesday against the makers of "Fortnite," saying they're illegally using a dance he created in their wildly popular video game. The Brooklyn-based rapper, whose real name is Terrence Ferguson, alleges in the suit filed in Los Angeles federal court that Epic Games, the North Carolina-based maker of "Fortnite," misappropriated his moves without compensation or credit

The lawsuit says the dance known on "Fortnite" as "Swipe It," one of many that players can buy for their characters, is taken from the "Milly Rock," a dance 2 Milly came up with in 2011 that caught on as a craze in the summer of 2015 after the release of a song and video of the same name.

Ferguson said the game both steals his creation and as a result appropriates his likeness. He's asking for a judge's order that the game stop using the dance and for damages to be determined later.

"They never even asked my permission," 2 Milly said in a statement.

Epic Games spokesman Nick Chester declined comment.

The fight-to-the-finish game "Fortnite" quickly became one of the most popular in history after its 2017 release.

Players can use real-world money to buy in-game currency that gets their characters outfits, gear or "emotes," brief dances that have become a cultural phenomenon performed on playgrounds, in social media posts and in the scoring celebrations of professional athletes.

"They actually sell that particular move. It's for purchase," 2 Milly told CBS News in November. "That's when I really was like ... oh nah, this can't go on too long."

2 Milly is not the first prominent person to complain about Fortnight's use of the moves.

Chance the Rapper criticized the game for not including the songs behind some of its dances and not giving artists a chance to share in its wealth. He called attention to this practice on social media in July, tweeting: "Imagine the money people are spending on these Emotes being shared with the artists that made them."

Actor Donald Faison, whose dance from the TV show "Scrubs" appear in an "emote," tweeted in March, "Dear Fortnite ... I'm flattered? Though part of me thinks I should talk to a lawyer."

Copyright claim vs. free speech

Other than specific choreography within a specific copyrighted work, dance moves can be difficult to sue over.

Jennifer Rothman, a professor at Loyola Law School in Los Angeles, said in an email that 2 Milly may have a potential copyright claim or a right-of-publicity claim if the dance is a signature move that identifies him and would lead players to think he endorsed the game. But Epic Games' free-speech rights may trump them.

"There are likely to be First Amendment and fair use defenses ... in the context of a video game," Rothman said, "which is understood as fully protected speech, on par with motion pictures and books."