Claudia Kassner
Even those who weren’t regular viewers of the 1990s sitcom The Fresh Prince of Bel Air would be likely to recognize easily the exuberant dance of one of its characters, Carlton Banks – and probably few could see the familiar swinging of the arms and swaying of the hips without Tom Jones’s “It’s Not Unusual” invading the mind. Yet last year, the Copyright Office deemed “The Carlton” not worthy of copyright protection. [1]
The Office’s opinion responded to three applications by Alfonso Ribeiro, the actor who played Carlton on Fresh Prince, for such protection amidst two lawsuits he filed for against video game makers for using the dance in their products.[2] Ribeiro had sued Take-Two Interactive and Epic Games for their use of versions of the Carlton dance in their games NBA 2K and Fortnite, respectively. Unfortunately for Ribeiro, the Office weakened his case by essentially finding that the Carlton dance was too basic to be copyrighted.[3] It labeled the dance a “simple routine made up of three dance steps” and not containing sufficient choreographic authorship to warrant copyright registration.[4] Consequently, Ribeiro ended up dropping both lawsuits, though without prejudice.[5]
However, Ribeiro’s allegations against these game makers are not unusual (no pun intended). Fortnite has incited ire from multiple parties asserting the impermissible use of their choreography in its graphics.[6] One of the more topical opponents is Russell Horning, AKA “Backpack Kid,” whose mother sued (on his behalf) Epic Games for the use of a dance associated with him, The Floss, in Fortnite.[7] Horning had better success than Ribeiro with the Copyright Office and was able to register a 30-second variant of The Floss, but it appears that the lawsuit has not yet reached resolution.[8] Donald Faison, the actor who played Turk on the television show “Scrubs,” has likewise criticized the use of Turk’s “Poison” dance in Fortnite, though he appears to have taken no legal action.[9] The Verge notes that Ribeiro’s case can be distinguished from similar lawsuits against Fortnite because he created The Carlton while playing a fictional character on another person’s television show, complicating the question of who (if anyone) owns the dance. That the Carlton dance hasn’t yet gotten legally enforceable copyright protection does not mean that others of its kind cannot.[10]
So what kind dance can be copyrighted? The Copyright Act provides in section 102(a)(4) for copyright protection in “pantomimes and choreographic works” fixed in some tangible medium of expression (typically, for registration purposes, video recordings or dance notation).[11] Excluded from copyright protection are “commonplace movements or gestures” (for example, celebratory end zone dances and yoga positions) and “ordinary motor activities and athletic movements” (such as skateboarding tricks, golf swings, or a ballet plie). “Social dances” is a particularly interesting exclusion to copyright protection; the Office explains, “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.”[12] The Office also seems to take the stance that for a choreographic work to be copyright-worthy, the “expressive compositional whole” must at least be greater than the sum of its parts. [13]
Those knowledgeable on the subject have expressed cynicism regarding the likelihood of success for legal challenges like the Fortnite dance ones.[14] However, as the public consumes and shares media in increasingly smaller units (TikTok, memes, and gifs are examples), copyright law may catch up and lower the standard for what can constitute a “choreographic work.”
[1] Letter from United States Copyright Office to Pierce Bainbridge Beck Price & Hecht LLP (Jan. 22, 2019) https://www.documentcloud.org/documents/5737799-Ribeiro-copyright2.html.
[2] Adi Robertson, The ‘Carlton dance’ couldn’t be copyrighted for a Fortnite lawsuit, The Verge, Feb. 15, 2019 https://www.theverge.com/2019/2/15/18226180/copyright-office-alfonso-ribeiro-carlton-fresh-prince-dance-rejected-fortnite-nba-2k-lawsuit
[3] Elizabeth A. Harris, Carlton Dance Not Eligible for Copyright, Government Says, New York Times, Feb. 15, 2019 https://www.nytimes.com/2019/02/15/arts/dance/carlton-dance.html
[4] Letter from United States Copyright Office to Pierce Bainbridge Beck Price & Hecht LLP (Jan. 22, 2019) https://www.documentcloud.org/documents/5737799-Ribeiro-copyright2.html.
[5] Jordan Crucchiola, Alfonso Ribeiro Shimmies Away From Fortnite Lawsuit Over Carlton Dance, Vulture, Mar. 8, 2019 https://www.vulture.com/2019/03/alfonso-ribeiro-fortnite-lawsuit-carlton-dance.html; Actor drops ‘Carlton Dance’ suit against video game maker, Associated Press, Mar. 7, 2019 https://apnews.com/507eca722cd24c2abbbc3f131dbd55ce
[6] Brian Crecente, ‘Fortnite’ Dance Lawsuits: The Carlton, the Floss, the Milly Rock, What is Going On?, Variety, https://variety.com/2018/gaming/news/fortnite-dance-lawsuit-1203092141/
[7] Elizabeth A. Harris, A Real-World Battle Over Dancing Avatars: Did Fortnite Steal the Floss?, New York Times, Jan. 11, 2019 https://www.nytimes.com/2019/01/11/arts/fortnite-floss-dance-lawsuits.html
[8] Brian Crecente, ‘Fortnite’ Dance Lawsuits: The Carlton, the Floss, the Milly Rock, What is Going On?, Variety, https://variety.com/2018/gaming/news/fortnite-dance-lawsuit-1203092141/
[9] Id.
[10] Adi Robertson, The ‘Carlton dance’ couldn’t be copyrighted for a Fortnite lawsuit, The Verge, Feb. 15, 2019, https://www.theverge.com/2019/2/15/18226180/copyright-office-alfonso-ribeiro-carlton-fresh-prince-dance-rejected-fortnite-nba-2k-lawsuit
[11] Copyright Registration of Choreography and Pantomime, U.S. Copyright Office, Circular 52 (Sep. 2017) https://www.copyright.gov/circs/circ52.pdf
[12] Id.
[13] Id.
[14] Elizabeth A. Harris, A Real-World Battle Over Dancing Avatars: Did Fortnite Steal the Floss?, New York Times, Jan. 11, 2019 https://www.nytimes.com/2019/01/11/arts/fortnite-floss-dance-lawsuits.html