‘The Carlton’ Dances Its Way Out of Copyright Protection

Advertising Law

As the lawsuits pile up against video game phenomenon Fortnite, one of the plaintiffs has lost his effort to copyright “The Carlton” dance as the basis of his action.

Alfonso Ribeiro, better known as Carlton Banks from the sitcom The Fresh Prince of Bel-Air, created and debuted a dance dubbed “The Carlton” in a 1991 episode of the show. In January, Ribeiro joined other artists in filing suit against Fortnite, alleging that the record-setting video game ripped off his signature moves. He maintained that The Carlton “remains distinctive, immediately recognizable and inextricably linked to [his] identity, celebrity and likeness,” according to his California federal court complaint. But he will have to proceed without the benefit of copyright protection.

In a recent decision, the Copyright Office Performing Arts Division rejected Ribeiro’s application, concluding that The Carlton was not registrable as a choreographic work because it “is a simple dance routine.”

The Copyright Office defines choreography as “the composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent and expressive whole.” Since choreography is a subset of dance, the Copyright Office will register a choreographic work only if it contains a sufficient amount of choreographic authorship.

“When drafting the current copyright law, Congress made it clear that it did not intend to protect all forms of dance or movement, specifically stating that ‘choreographic works’ do not include social dance steps and simple routines,” the Copyright Office explained. “Additionally, ‘[i]ndividual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine or the second position in ballet.’”

Ribeiro’s submission consisted of a simple routine made up of three dance steps: In the first step, the dancer sways the hips while stepping from side to side and swinging the arms in an exaggerated manner; in the second, the dancer takes two steps to each side while opening and closing the legs and arms in union. In the final step, the dancer’s feet are still and one hand is lowered from above the head to the middle of the chest while fluttering the fingers.

“The combination of these three dance steps is a simple routine that is not registrable as a choreographic work,” the Copyright Office concluded. “Accordingly, your application for registration is refused.”

To read the Copyright Office’s denial, click here.

Why it matters: The denial from the Copyright Office highlights the challenges the plaintiffs face in their lawsuits against Fortnite. As the Copyright Office explained, social dances and simple routines are not “choreographic works” subject to Copyright Act protection. Without such protection, Ribeiro and the other plaintiffs will find it difficult to convince a court that the video game stole their dance moves.

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