Epic is fighting back and fighting back hard against these dance lawsuits. Epic has moved to dismiss a copyright infringement lawsuit over dance moves in Fortnite filed by 2 Milly claiming that “no one can own a dance step”.
First, in order to show copyright infringement you must prove that you are the owner to the copyright. With the 2 Milly case, he needs to show he created the “Milly Rock” dance and prove he is the owner to the rights to it.
The Copyright Office has made it clear that it is not a fan of granting copyright protection in dance moves. This is what the Copyright Office has said about the copyrightability of dance moves: “individual movements or dance steps by themselves are not copyrightable…the U.S. Copyright Office cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations…” The Copyright Office goes on to say that even organized social dances like ballroom dances and square dance movements are not protected. However, the Copyright Office does grant protection to elements of choreography that include some common elements such as a story told through movement, a series of dance movements or patterns organized in a coherent composition whole, and a presentation before an audience.
Following along these lines, Epic moved to dismiss the copyright infringement claim stating that “Plaintiff’s lawsuit is fundamentally at odds with free speech principles as it attempts to impose liability, and thereby chill creative expression, by claiming rights that do not exist under the law,” and that “no one can own a dance step”. Further, Epic claims that the moves seen in the above gif are “simple routines” and not entitled to copyright protection to begin with.
This was not an unexpected development at all and much like the dance moves of 2 Milly are rather routine (zing). The court will wait for the response of 2 Milly and then a reply from Epic and then, eventually, will issue a decision on whether the case should be dismissed or move on.