Federal courts have consistently agreed, ruling that only a series of related dance moves and patterns that organize into a coherent whole work can count as a “choreography” for copyright protection. The Second Circuit has ruled that “the basic waltz step, the hustle step, and the second position of classical ballet are not copyrightable.” Similarly, the US Copyright Office explicitly states that “[e]xamples of social dances not protected by copyright include ballroom dances, folk dances, line dances, square dances, and swing dances.”

Here's another way of thinking about it: While a book is, of course, copyrightable subject matter, you can't copyright a single sentence. Likewise, a choreographed ballet that constitutes a coherent, full work is more likely to be protected by copyright law than a single dance move like the moonwalk, the hustle step, or—yes— the Swipe It.

The Electric Slide Copyright Fiasco

While no one has prevailed in a copyright lawsuit by arguing that they own a simple dance move, that hasn’t stopped people from trying. The Electric Slide, for example, is significantly more robust than the Milly Rock. Created in 1976 by Richard Silver, the viral line dance is comprised of 18 steps. In 2007, Silver attempted to have a YouTube video removed pursuant to the Digital Millennium Copyright Act because it contained about ten seconds of footage of dancers doing the Electric Slide. What particularly agitated Silver was his belief that the dancers were performing his moves “incorrectly.”

The Electronic Frontier Foundation came to the rescue of the boogieing masses, suing Silver and asking the court to protect the public’s free speech rights to perform the Electric Slide. Silver surrendered, agreeing to officially open the Electric Slide to the public under a Creative Commons license.

Could 2 Milly Win?

Since 2 Milly likely won't prevail under copyright law, his lawyers have added two additional theories of liability: (1) Right of Publicity infringement, and (2) Unfair Competition. While these claims may be slightly stronger than the copyright claim, they're unlikely to succeed for a couple of reasons. Even though 2 Milly originally popularized the Milly Rock, the dance has since entered the cultural ethos, gone viral, and been included in dozens of unrelated rap music videos and performed by countless people on social media, including Rihanna, Chris Brown, and Wiz Khalifa. It is no longer a dance associated solely with him. Furthermore, Epic Games wisely changed the name of the dance from the Milly Rock to the Swipe It. Had Epic Games called it the Milly Rock, 2 Milly would have very strong claims for misappropriation.

There is also a significant business ethics issue here. It is arguably unethical cultural appropriation for a multi-billion dollar company to use the creative work of an African-American artist without any compensation simply because the company can legally get away with it. I expect that this, and the accompanying negative publicity, will ultimately be the impetus for Epic Games to change its policy of borrowing dance moves without compensating their creators.

Unfortunately for 2 Milly, while Fortnite’s former use of the Swipe It dance may have been ethically questionable, it was not illegal—at least as far US copyright law is concerned. Nonetheless, I suspect that 2 Milly’s lawyers will be able to negotiate a settlement based on the negative publicity surrounding Epic Games’ cultural appropriation. My verdict in the saga of the Milly Rock rip-off: Although Fortnite did, in fact, swipe it, 2 Milly will still get rocked in court.

WIRED Opinion publishes pieces written by outside contributors and represents a wide range of viewpoints. Read more opinions here. Submit an op-ed at opinion@wired.com

More Great WIRED Stories