Alfonso Ribeiro, the actor known for playing Carlton in the TV series The Fresh Prince of Bel-Air, has hit a major stumbling block in his legal action against Fortnite and Epic Games, and 2K Games and the NBA 2K series. He’s been refused copyright of the Carlton dance.
The US Copyright Office made no bones about it.
“Upon review of the material deposited for registration, we must refuse registration [of the dance] because the work submitted for registration is a simple dance routine,” it said in a letter uploaded by the Hollywood Reporter (dated 22nd January). “As such, it is not registrable as a choreographic work.”
The key word is “simple”. To register a choreographic work it has to be substantial. Simple routines or social dance steps – think the basic waltz step or second position in ballet – aren’t protectable.
The US Copyright Office defined the submitted Carlton dance as containing three steps:
- “The dancer sways their hips as they step from side to side, while swinging their arms in an exaggerated manner.
- “The dancer takes two steps to each side while opening and closing their legs and their arms in unison.
- “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 registerable as a choreographic work,” the US Copyright Office reiterated. “Accordingly, your application for registration is refused.”
The law firm defending both Epic Games and Take-Two/2K was quick to pounce on this.
“This lawsuit suffers from a host of issues ranging from a lack of plausible ownership, to a lack of substantial similarity, to preemption by the Copyright Act,” wrote Dale Cendali, from Kirkland & Ellis, in his Take-Two defence (dated 13th Feb). “Fundamentally, it conflicts with the First Amendment as it attempts to impose liability, and thereby chill creative expression, by claiming rights that Plaintiff [Alfonso Ribeiro] does not hold. It should be dismissed.”
Ribeiro isn’t the only celebrity taking legal action against Fortnite and the NBA 2K series of games. He joins rapper 2 Milly, Backpack Kid, and Orange Shirt Kid on the bandwagon, all represented by the same law firm, Pierce Bainbridge Beck Price & Hecht, which I bet is thrilled at having to refer to them by those names.
The idea behind the flurry of litigation is for Price & Hecht to stir up enough momentum to prompt an out of court settlement by Epic and Take-Two, to make the problem go away. A nice little earner. But Epic’s lawyers, buoyed by the Ribeiro copyright refusal, show no signs of letting up now.
“Plaintiff’s [Terrence ‘2 Milly’ Ferguson’s] lawsuit is fundamentally at odds with free speech principles as it attempts to impose liability, and thereby chill creative expression, by claiming rights that do not exist under law,” wrote Dale Cendali in Epic’s defence (dated 11th Feb). “No one can own a dance step.
“Copyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy.”
Cendali asked for the motion to be dismissed.
It’s hard to see what leg Ribeiro now has to sway on, and indeed the other lawsuits filed by Price & Hecht. Perhaps they will topple like dominos. But they’ve left a mark. Playground Games whipped the Floss and Carlton dance-emotes out of Forza Horizon 4, and I can imagine a similar hesitation freezing other companies. But what now? Will the Forza emotes be reinstated – will the floodgates re-open?