Two lawsuits brought by “The Fresh Prince of Bel-Air” actor Alfonso Ribeiro against Epic Games, the maker of Fortnite Battle Royale, and Take-Two Interactive Software, which makes NBA 2K, appear likely to end soon after Ribeiro suffered a setback when the U.S. Copyright Office denied copyright protection to the “Carlton” dance, a dance Ribeiro made popular on the show in the 1990s as seen here. In the lawsuits, Ribeiro alleges that characters in the videogames make illegal use of the “Carlton” dance which amounts to copyright infringement. A side-by-side comparison of the “Carlton” and the move as seen in Fortnite, as well as a discussion of the lawsuits, can be seen here.
Ribeiro has submitted three copyright applications involving the “Carlton” dance to the U.S. Copyright Office. So far, the Copyright Office has rejected two of the applications and is still considering the third. In the two applications that have been rejected to date, the Copyright Office ruled that the “Carlton” dance amounts to a simple dance move, which cannot be copyrighted, as opposed to a choreographed dance routine, which can be copyrighted.
Lawyers for the video game makers named in Ribeiro’s infringement lawsuits have filed motions to dismiss which are scheduled for hearing later in March. Although not bound by the rulings of the Copyright Office, the judges in the lawsuits would almost certainly have taken the rulings into account when deciding the motions to dismiss. Perhaps this fact played into Ribeiro’s decision to dismiss his lawsuit against Epic Games, a move which Ribeiro’s legal team announced in documents filed in the lawsuit on March 7, 2019. Ribeiro’s legal team also announced similar plans to dismiss the other lawsuit filed against Take-Two Interactive Software.
Ribeiro’s lawsuits seem to have faltered on the concept of copyrightability. A work that is not copyrightable is not protectable. The Copyright Act provides in Section 102(a)(4) for copyright protection in “pantomimes and choreographic works” created after January 1, 1978, and fixed in some tangible medium of expression. The Copyright Act does not define the term “choreography” or “choreographic” but the Copyright Compendium and case law have defined those terms as a “related series of dance movements and patterns organized into a coherent whole.” And dance moves have been defined as “static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.” From this, it appears that the issue with the “Carlton” dance may have been an insufficient number of distinct dance moves woven together into a coherent whole to qualify for protection as a choreographic work. Alternatively, the Copyright Office may have deemed there to be an insufficient amount of creativity to warrant copyright protection. Whether seeking copyright protection for a work or being accused of infringing a copyright, it is always advisable to retain an experienced copyright attorney who will know the requirements for protection and the defenses, such as a lack of copyrightability, against infringement.
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