February 27, 2019
Recent developments in the copyright infringement lawsuit brought by Alfonso Ribeiro, known for playing Carlton on The Fresh Prince of Bel-Air, against video game maker Epic Games confirm the questions raised in my prior post as to whether Ribeiro could register a copyright in the Carlton dance and bring a claim for infringement.
First, consistent with my analysis that the “Carlton” was too simple to warrant copyright registration, the U.S. Copyright Office denied Ribeiro’s application to register one variation of the “Carlton,” finding that the “work submitted for registration is a simple dance routine,” and “[a]s such it is not registerable as a choreographic work.” After citing the Copyright Office rules and guidance, which I discussed in my prior post, and carefully describing the Carlton’s “simple routine made up of three dance steps,” the Copyright Office found that the “combination of these three dance steps is a simple routine that is not registerable as a choreographic work,” and “refused” Ribeiro’s application for registration. Epic Games’ counsel has cited the Copyright Office findings in a filing seeking to dismiss Ribeiro’s copyright claim.
Second, the Copyright Office also recognized, as I pointed out, that Ribeiro’s claim to ownership of the dance moves, even if they are protectable, was questionable. In response to Ribeiro’s application to register his performance of the Carlton on Dancing with the Stars, the Copyright Office cited the fact that the “the footage deposited [with the Copyright Office] is a professional production aired on ABC.” The office therefore questioned whether Ribeiro’s dance, as well as any contribution he made to developing the moves, were created under a work for hire agreement. Such an agreement, the Copyright Office noted, would preclude Ribeiro’s infringement claim because the party that hired him, not Ribeiro, would be considered author and copyright owner of such a work for hire. Similarly, in its court filings, Epic Games’ counsel pointed out that the Carlton was created for and first appeared on the Fresh Prince of Bel-Air series owned by NBC, in an episode that bears a copyright notice listing only “National Broadcasting Company, Inc.,” not Ribeiro. Epic Games contends that Ribeiro recognizes he lacks ownership of that performance, which is why he has not sought to register that variant of the performance.
Ribeiro and his counsel have not yet had a chance to respond to Epic Games’ court filings raising these issues, and the Court has not ruled on them. We’ll keep you posted on this case.
Epic Game’s defense against claims by Ribeiro and others in federal court in California has not, however, deterred others from bringing suits alleging infringement of dance moves against the maker of the popular Fortnite game. Just this week, in federal court in Maryland, two former University of Maryland college basketball players who claim that they popularized the “running man” dance on “The Ellen DeGeneres Show” in 2016 say Epic Games has profited from their “fame, creativity and hard work.” According to their complaint, the pair is in the process of registering the dance with the Copyright Office, but has yet to obtain registration, so it is unclear whether the Copyright Office will deem their dance moves registerable. (As I noted in an earlier post, the law currently is unsettled as to whether a copyright claimant needs to obtain a copyright registration or merely have filed its application in order to maintain a copyright infringement claim. That issue is now before the Supreme Court to clarify. In federal courts in Maryland and California, the mere filing for a copyright registration is deemed sufficient).
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.