Alfonso Ribeiro has sued the creators of Fortnite and the NBA 2K series for using the “Carlton Dance” as an unlockable (i.e. purchasable) character celebration dance.
Ribeiro is best known for his portrayal of uptight “Carlton Banks” on the 90’s sitcom the “Fresh Prince of Bel-Air.” In one episode, Banks starts doing a dance move that is now known as the “Carlton Dance,” and to this day it remains prominent part of 90’s pop-culture. Ribeiro himself has gone on to perform on ABC’s show “Dancing with the Stars” and win his season, peppering the “Carlton Dance” into his routines.
Fortnite, on the other hand, is “the most popular game in history” and is a game in which players compete in a “battle royale” to be the last person standing. The game is free, but generates income through micro-transactions to purchase new cosmetic items for the player’s character and, most importantly, “emotes,” or celebratory dances that can be performed in-game. NBA 2K offers a character-creation mode where players can unlock celebrations to use in-game, as well.
So this raises the question– can a dance move be protected?
Copyright Law Does Not Protect “Individual Dance Moves” or “Social Dances”
According to the complaint, Ribeiro believes that he owns the dance, that it is copyrightable, and that Fortnite and NBA 2K’s use infringes on those protectable rights.
As others who have tried to protect motions like touchdown celebrations and yoga poses have learned, this is going to be a tough claim for Riberio. The U.S. Copyright Office offers the following guidance about when choreography can be protected: https://www.copyright.gov/circs/circ52.pdf
Specifically, the Copyright Office has stated that “individual movements or dance steps by themselves are not copyrightable.” 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.”
Is the Carlton Dance a “short dance routine consisting of only a few movements or steps with minor variations?” It sure seems like it.
The Copyright Office provides further examples that seem even more damning to Ribeiro’s claim. Unprotectable dance moves include:
- A set of movements whereby a group of people spell out letters with their arms
- Yoga positions
- A celebratory end zone dance move or athletic victory gesture
And here is the proverbial “nail in the coffin” on whether “social dances” can be protected:
“[T]he drafters of the copyright law also made clear that choreographic works do not include 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.” Copyright Circular 52.
The Copyright Office’s circulars are not binding law or precedential decisions by a federal court, however, they were written by expert copyright attorneys and should be given significant deference when it comes to these claims. It would seem that guidance like Circular 52 was written to directly address attempts to protect “social dances.”
Further, Epic and Take-Two are not the first to use the “Carlton Dance” in their games:
- Team Fortress 2 used it: https://www.youtube.com/watch?time_continue=4&v=vSIZznbfmcE
- League of Legends used it: https://www.youtube.com/watch?v=V5oso_b1plM
- Doom 2016 used it: https://www.youtube.com/watch?v=dl2PjDw6LnU
- Saint’s Row III used it: https://www.youtube.com/watch?v=Rb0LWK3LrcI
- MMORPG Rift used it: https://www.youtube.com/watch?v=nP9ni3bqQnY
- Transformers Fall of Cybertron used it: https://www.youtube.com/watch?v=qm_9_NUNZ2A
- Destiny used it: https://www.youtube.com/watch?v=fb-l9QNPQw8
- Guild Wars 2 used it: https://www.youtube.com/watch?v=y-oOci7-mJg
Finally, while the dance is unlikely to be protectable, it is important to note that Ribeiro himself attributes “inspiration” of the dance to Courtney Cox in Bruce Springsteen’s “Dancing in the Dark” music video.
Here is a helpful comparison: https://www.youtube.com/watch?v=NGoXGFk1hHM
Another question is whether Ribeiro owns the dance in the first place. On the sets of most TV shows, union rules dictate who owns what and in most situations, an actor would not be given ownership rights in something developed for a specific show episodes. The character “Carlton Banks” isn’t owned by Ribeiro, who played the role. It is owned by the writers and/or studio that created the character. It is unclear whether Ribeiro could even make a claim to the authorship (or subsequent ownership) of the dance even it qualified for copyright protection.
Right of Publicity Protects “Likeness” But Does it Protect a “Dance Move?”
The second claim made by Ribeiro holds a little more water, but barely. The “right of publicity” is a state law (as opposed to Copyright law, which is federal) that gives celebrities the right to control the use of their names and likenesses.
The California ‘right of publicity’ law states that “it shall be a question of fact whether or not the use of the person’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required[.]” (Cal. Civ. Code § 3344(e)).
The question is- is this really his “likeness”? If that were the case, would every football player, professional wrestler, or anyone else with a notable hand signal be able to claim that as their “likeness?” It’s unclear. Courts have been notoriously uneven in their application of right of publicity laws but it seems like a stretch to say that a dance move is synonymous with someone’s “likeness.” If it were, would every use of ‘the Moonwalk’ in commercial media be actionable by Michael Jackson’s estate?
Defining a “likeness” as an actor’s signature dance move would potentially open the door for widespread application of the law to other signature moves, sayings, mannerisms, or other similar uses in commercial media and/or advertising.
Why Was Trademark Law Excluded From Ribeiro’s Claims?
Notably absent from the complaint are any trademark law claims. But why? Lamborghini registered the unique way its doors open.
The Peabody hotel has registered its “duck march,” a nightly event where a conductor leads the ducks from the hotel fountain to a lake.
These are registered trademarks because they have acquired distinctiveness through long-term use and fame. The motions are inextricably tied to one specific business for specific sets of goods and services.
This connection to a specific set of goods or services is where Ribeiro is likely to have an issue if he filed a “motion mark.” Would consumers see it and think of specific goods and services? Perhaps there is an argument that its a trademark for his public speaking engagement, or for any merchandise, retail services, etc. he might have. This is where a trademark attorney should have come in years ago and started commercializing the dance into an actual brand. Instead, Ribeiro is stuck relying on untested publicity claims and very weak copyright claims, rather than being able to show that through deliberate use of the dance move in connection with specific goods and services, he was able to acquire distinctiveness and exclusive rights to use this “motion mark” in commerce.