Can I Copyright My Funky Dance Moves? Ask Intellectual Property Attorney Larry Brocchini

The recent filing of a federal copyright infringement lawsuit by Alfonso Ribeiro—“Carlton” on The Fresh Prince of Bel-Air and YouTube celebrity, famous for “the Carlton,” his arm-swinging movements to the Tom Jones diddy “It’s Not Unusual”—raises the question of whether and to what extent choreographed dance moves can by copyrighted and protected under federal law.

Ribeiro joins “Backpack Kid” Russel Horning, famous for slicing arm and hip movements during a 2017 Katy Perry performance, and rapper Terrence Ferguson, aka 2 Milly.  They each contend that game maker Epic Games stole their dance moves and used them without permission or credit in the game Fortnite.  Fortnite features the Carlton-like moves as optional in-game purchases that players can make and use as victory dances for their avatars.

So, is a dance move like the Carlton something that can be copyrighted?

The good news for Riberio is that because the Carlton dance performance was created after 1977 and is fixed in a tangible medium that allows for consistent performance—in that case videotape of Fresh Prince, although Labanotation or Benesh dance notation is often used—it might be protectable by federal Copyright law.

Less clear is whether the Carlton or dances like it qualify as protectable under the copyright law, or whether they simply lack sufficient originality to qualify or are the type of movements the law protects, as not all dance or movements are protected.

Initially, movement has to reflect original authorship in order to possibly be eligible for copyright protection.  You simply can’t copyright a dance if someone else already performed it publicly.  There must be something original in the dance, but that may not be enough.

The U.S. Copyright Office—the government agency that decides whether or not to grant a copyright registration—broadly defines choreography as the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.  The common elements of choreography include (1) rhythmic movements in a defined sequence and a defined spatial environment, such as a stage; (2) a series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole; (3) a story, theme, or abstract composition conveyed through movement; (4) a presentation before an audience; (5) a performance by skilled individuals; and (6) musical or textual accompaniment.

The Copyright Office states that choreography consisting of ordinary motor activities, social dances, commonplace movements or gestures, or athletic movements may lack a sufficient amount of authorship to qualify for copyright protection.  It has also identified several categories of movement that are not protectable, including (1) sports activities and performance art; (2) individual movements or dance steps, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet; or (3) short dance routines consisting of only a few movements or steps with minor linear or spatial variations.  Some commonplace movements the Copyright Office says do not qualify include (1) spelling letters using arms; (2) yoga positions; (3) end zone or victory dances or gestures.

The Copyright Office has also said that registrable choreographic works are typically intended to be executed by skilled performers before an audience.  As a result, social dance steps (such as ballroom, folk, line, square and swing dances) and simple routines performed generally by members of the public for the enjoyment of the dancers themselves are not registrable, even if they are highly original.

The question for the Carlton, then, is first whether the sliding back and forth and arm swinging exhibited is sufficiently original, as similar movements would seem to be fairly typical dance movements.  Also, at issue is whether the Carlton is sufficiently elaborate to qualify as choreography.  Given the short duration of the dance, the simplicity of the relatively commonplace movements, Ribeiro faces an uphill battle attempting to get registration and then prevailing against the game maker.

Ribeiro faces an additional challenge, as the Carlton was developed in connection with his work as an actor working for a production company.  If the Fresh Prince writers or directors developed the Carlton, they would own any copyright, not Carlton, even if he performed it; more likely, even if Riberio ad libbed  it, the Carlton would be a “work for hire” and the Fresh Prince production company or network would own any copyright.

Stay tuned for updates on the suits against.

This article is intended only as a general discussion of these issues.  It is not considered to be legal advice or relied upon.  If you need assistance with a particular IP, commercial or employment  issues, including an issue regarding copyright, Larry Brocchini would be pleased to consider providing additional details or advice about specific situations.