Last December, Alfonso Ribeiro, aka “Carlton Banks” of TV’s The Fresh Prince of Bel Air fame, sued the makers of popular video game Fortnight for using the dance his character made popular on the show. He claimed the Fortnight makers copied the two-step dance, alleging claims of copyright infringement. In order to sue in Federal Court on claims of copyright infringement, the complaining party must have a valid copyright registration from the U.S. Copyright Office and show that the two works are substantially similar.
U.S. Copyright Office rejects the copyright protection for “The Carlton”
Just last week, the U.S. Copyright Office rejected Mr. Ribeiro’s application for the “Carlton dance” on the basis that it is not protectable as a choreographic work. The Copyright Office based its finding on the fact that the routine is a social dance step and not copyrightable. In its refusal letter, the Copyright Office says that “choreography” and “dance” are not synonymous and that 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.” The Copyright Office goes on to say that “individual 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.” It found the Carlton to be a “simple routine made up of three dance steps” and for this reason it is not registrable as a choreographic work under the Copyright Act.
Yoga Sequences are also not entitled to copyright protection
Not all original works of authorship are eligible for copyright protection. In December 2012, Bikram Choudhury, the developer of the Bikram yoga brand, tried unsuccessfully to sue his former students for copyright infringement for allegedly copying his sequence of yoga poses. Read more about that case in our blog post here. The court held in that case that a sequence or compilation of exercises or yoga poses is not an enumerated protectable category under the Copyright Act and therefore not subject to copyright registration. As a result, Bikram could not sue for copyright infringement.
Rights of Publicity may still bring relief to Mr. Ribeiro
While we are not representing Mr. Ribeiro in his case and are not familiar with all of the bases of the complaint, it seems to me that the stronger basis of complaint against Fortnight would be to sue for violation of rights of publicity. Rights of publicity statutes prevent the unauthorized commercial use of an individual’s name, likeness, image, voice or other recognizable aspects of one’s persona. Regardless of whether there is a valid copyright, it is clear the Carlton dance is associated with the Mr. Ribeiro’s character and this is in fact his signature dance. Therefore, as a result, it could be argued that the Carlton dance is a “recognized aspect” of Mr. Ribeiro’s persona, and Fortnight is trying to falsely affiliate its games with Mr. Ribeiro without his permission and without compensating him.
It will be interesting to see what happens in the case and whether the parties continue to litigate or settle the case. Please follow us on LinkedIn for further updates as they are reported on the case. If you have any questions about copyright infringement or any other intellectual property issue, please contact us.
Stacey C. Kalamaras is the founding partner of Kalamaras Law Office, LLC. She has extensive intellectual property experience with a particular focus on trademark prosecution and enforcement. She has protected some the world’s largest brands in more than 150 countries and specializes in helping small and medium sized businesses grow and protect their brands. Contact her at firstname.lastname@example.org.
Stacey is also the founder and lead instructor of Trademarkabilities®, an online trademark academy for lawyers, whose mission it is to prepare lawyers to be confident and effective practitioners before the USPTO. To learn more, please visit https://www.trademarkabilities.com/.