Naperville Business Lawyer on Signature Dance Moves as Copyrighted Works

copyright, Naperville business law attorneyIf you were to write a book or record an original piece of music, you would be able to file for copyright protection of your work. Copyright protection, at its most basic, means that you would be able to control whether others were allowed to use your work for profit. Licensing rights and similar arrangements are all related to copyright protection.

In my practice as a business law attorney, I help clients obtain copyright protections and trademarks for their works and intellectual property. Perhaps that is why I was so interested to hear about the lawsuits that are now pending against a video game company over their use of signature dances. Three individuals—including a popular sitcom actor from the 1990s—have filed suit against Epic Games alleging copyright infringement and violations of the right of publicity.

The Comeback of the “The Carlton”

From 1990 to 1996, Alfonso Ribeiro played Carlton Banks, on-screen cousin of Will Smith’s character on The Fresh Prince of Bel-Air. In a 1991 episode, Ribeiro’s character performed an exuberant, arm-swinging dance to “It’s Not Unusual” by Tom Jones. Ribeiro’s dance gained popularity over the years, and to this day, most people would recognize it as “The Carlton”—an homage to the character’s name. Ribeiro himself even performed the dance again during his run on Dancing With the Stars in 2014.

The dance is still popular enough to have been included as an “emote” that can be purchased for use in Epic Games’ Fortnite. Since its release last year, Fortnite has become one of the most played games in the world. Emotes are among the list of items that players can buy for their in-game characters and include dances, celebrations, and other emotional reactions. In the game, the dance is called “Fresh,” but there is little question that the move is The Carlton.

The Lawsuit

Ribeiro recently filed a lawsuit in federal court against Epic Games claiming that the video game company violated copyright laws by using the dance without his permission. The suit also alleges that “The Dance remains distinctive, immediately recognizable, and inextricably linked to Ribeiro’s identity, celebrity, and likeness,” which is the basis for the claim of violating his right of publicity.

Two other individuals have filed similar suits. Rapper 2 Milly is suing over the use of his “Milly Rock” while Russell Horning—better known as the “Backpack Kid” is suing over the use of the “Floss” which he created in 2016.

Are Dances Copyrightable?

Perhaps the biggest question the court will need to decide is whether dance moves qualify as works protectable under copyright laws. Historically, dance moves have not been considered copyrightable works. In fact, the U.S. Copyright Office says, “Individual movements or dance steps by themselves are not copyrightable,” nor are “short routines consisting of only a few movements…even if a routine is novel or distinctive.” The Copyright Office typically reserves copyright protections for choreographic works but does not provide a minimum length or other criteria for differentiating a short routine from a choreographic work.

Even if the copyright portion of the suit fails, however, the other element could still be successful. Ribeiro and the other plaintiffs would need to show that using the dances constituted use of their images for profit.

Call a DuPage County Copyright Attorney

If you have questions about copyright protections or trademarks, an experienced Naperville business lawyer can help you find the answers. Call 630-756-1160 for a confidential consultation at The Gierach Law Firm today.



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