by Scott Hervey
The IP Law Blog
Actors gain notoriety for different reasons. For some, it’s due to a physical characteristic or an iconic character portrayal. For Alfonso Ribeiro, it’s a dance. The dance, which has become known worldwide as the “Carlton Dance,” is a corny dance number performed by Ribeiro’s character Carlton Banks on the 90’s sitcom “The Fresh Prince of Bel Air.” That dance is now the center of a copyright infringement lawsuit Ribeiro filed against Epic Games and Take-Two Interactive. Ribeiro claims that Epic Games incorporated the Carlton Dance in the hit fighting game “Fortnite” and Take-Two did the same in the popular “NBA 2K16” basketball game.
To be fair, Ribeiro is not the only one claiming Take-Two and Epic Games infringed dance choreography; other plaintiffs include rapper Terrence Ferguson (known as 2 Milly) who claims that Epic Games infringed his “Milly Rock” routine, and Russell Horning, better known as Backpack Kid, who claims that Fortnite and NBA 2K16 characters were programmed to mimic moves from his routine, “The Floss.”
Dance routines are protectable under the Copyright Act. Section 102(a)(4) of The Copyright Act provides copyright protection of “pantomimes and choreographic works” created after January 1, 1978, and fixed in some tangible medium of expression. Choreography is the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole. According to the Copyright Office’s Circular 52, a choreographic work or pantomime typically contain one or more of the following elements:
The Copyright Office does state that the presence or absence of a given element does not determine whether a particular work constitutes choreography or a pantomime.
However, individual movements or dance steps by themselves are not copyrightable. Examples of non-protectable dance steps include the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet. The U.S. Copyright Office cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive. An example of a commonplace movement or gesture that does not qualify for registration as a choreographic work includes celebratory end zone dance move or athletic victory gesture.
Also not registrable are social dance steps and simple routines. Registrable choreographic works are typically intended to be executed by skilled performers before an audience. By contrast, uncopyrightable social dances are generally intended to be performed by members of the public for the enjoyment of the dancers themselves. Social dances, simple routines, and other uncopyrightable movements cannot be registered as separate and distinct works of authorship, even if they contain a substantial amount of creative expression.
This could be the first hurdle Ribeiro must overcome. It seems fair to argue that the “Carlton Dance” is uncopyrightable due to its simple, uncomplicated nature. The Carlton Dance consists of only a few or steps with minor linear or spatial variation.
Ribeiro credits the Carlton Dance to Eddie Murphy’s routine “White People Can’t Dance” from RAW. In that routine, Eddie Murphy commented on the ubiquitous nature of the style of dance mimicked by Ribeiro. While intended to be humorous (and it is), Murphy’s statement was an accurate generalization of the 90’s dance style. As such, it would not be an unreasonable argument that the “Carlton Dance” is uncopyrightable basic dance step.
Even if the Carlton Dance were registrable, Ribeiro would have to establish that he owned the copyright and not NBC Productions, the studio that produced “The Fresh Prince of Bel Air.” While this author has not seen Ribeiro’s performer contract, it is standard practice in the entertainment industry that all television performer contracts include a provision which vests the production company with all “right, title and interest, including copyright, in the results and proceeds” of a performer’s services. As a result of this provision, Ribeiro’s performance as Carlton and all of the characteristics and attributes of the Carlton character would be owned by NBC Productions and not Ribeiro. As its name implies, the Carlton Dance is an attribute of the character Carlton Banks and any copyright interest therein would likely be owned by NBC Productions.
The fact that the Carlton Dance is an attribute of the television character played by Ribeiro could be a factor in determining his right of publicity claim. However, Ribeiro has essentially co-opted the “Carlton Dance” as his own by having performed it in numerous talk show and personal appearances. The right of publicity can extend to various personal attributes such as name, nicknames, pseudonyms, voice, signature, likeness, photograph or other indicia of identity or persona. An argument that the Carlton Dance has become synonymous with Ribeiro would support a claim that the Carlton Dance is part of his protectable persona. If such argument is well received by the court, based on the holdings of White v. Samsung Electronics America, Inc., and Wendt v. Host International, the two video game companies could face substantial liability.
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