April 25, 2019
The United States Copyright Office has denied an application for copyright protection relating to a viral dance move that has appeared in a number of massively popular video games, including Fortnite.
The Copyright Office denied copyright registration to Alfonso Ribeiro, the original performer of the “Carlton dance.” Ribeiro created the dance while portraying the character Carlton Banks on the hit NBC sitcom Fresh Prince of Bel-Air, which aired from 1990 to 1996.
In a separate proceeding, Ribeiro filed suit in December 2018 in a California federal court for copyright infringement against Take-Two Interactive, the creator of the popular NBA 2K series, and Epic Games, owner of Fortnite.
In the letter announcing the denial, U.S. Copyright Office registration specialist Saskia Florence states that the “Carlton dance” is a simple dance routine, as opposed to a more complex work of choreography, which could be copyrighted:
“The work submitted for registration with this application consists of a simple routine made up of three dance steps, the first of which is popularly known as ‘The Carlton.’ […] The dancer sways their hips as they step from side to side, while swinging their arms in an exaggerated manner. In the second dance step, the dancer takes two steps to each side while opening and closing their legs and their arms in unison. In the final step, the dancer's feet are still and they lower one hand from above their head to the middle of their chest while fluttering their fingers. The combination of these three dance steps is a simple routine that is not registrable as a choreographic work. Accordingly, your application for registration is refused.”
The court hearing Ribeiro’s infringement lawsuit would not have been bound by the Copyright Office’s decision. However, Ribeiro dropped the suits against Take Two and Epic following the Copyright Office's decision.
A number of other creators of viral dance moves have taken legal action within the past six months against Fortnite arising from the game’s use of viral dance moves. However, because Ribeiro originally performed the “Carlton dance” while portraying a fictional character on a television program created by a network, his case raises unique questions about the copyright-ability of pop-culture references such as dance moves. Aside from legal considerations, these cases point to debates around the ethics of appropriating aspects of culture for commercial use.
Under Canadian law, copyright subsists in all original literary, dramatic, musical and artistic works from the moment they are created, provided that they meet the requirements of the Copyright Act. Registration provides the creator with the added benefit of proof that a copyright exists.
Authors: Jaclyn Tilak and Wes Dutcher-Walls