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Will Alfonso Ribiero Win His Lawsuit Against Fortnite Over “The Carlton Dance?” (Hint: No)

Actor Alfonso Ribiero played nerdy guy Carlton on “The Fresh Prince of Bel Air” back in the last century. One of the greatest scenes from the show was when Cartlon, home alone, dances wildly to Tom Jones’ hit “Its Not Unusual.” The dance became his signature move and dubbed The Carlton. Now two video game companies are being sued over incorporating a segment of the dance into their game’s characters. He has sued Epic which makes the popular game Fortnite and 2K which produces NBA 2K16. He is in the process now of trying to file copyright over the dance move. The lawsuit raises several issues as Epic has included other signature dance moves (like Snoop Dogg’s from “Drop It Like It’s Hot”) into its game.

Are Dance Moves “Copyrightable?” Yes, US Copyright circulars confirm that works of art that are protectable under copyright include “Rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage.” It makes sense of course. Imagine if anyone could just copy a Twyla Tharp, or Alvin Ailey, or Martha Graham piece and put it out as their own.

Is the Piece of the Carlton Dance Used by the Companies Enough to be an Infringement?” It depends. Generally, small snippets of a copyrighted work might not be enough to constitute a copy and become an actionable infringement. We recently celebrated the 20th anniversary of Biz Markie’s loss in a lawsuit brought by Gilbert O’Sullivan for infringement of a sample of O’Sullivan’s hit “Alone Again Naturally” in the Biz Markie hit “He’s Just a Friend.” The court found that the small section of the song was a recognizable element of the prior song and constituted infringement. The decision permanently altered the landscape for sampling. Major labels were forced to dedicate additional staff and resources (jobs for lawyers!!) toward scouring releases to make sure all samples had proper clearance. A few notes may be enough if it is recognizable as the prior art. Think of the bass line from “Under Pressure” sampled by Vanilla Ice in “Ice Ice Baby.” I think the few moves taken by Epic and 2K are identifiable as The Carlton Dance so that hurdle should be cleared.

Image Courtesy of Cinema of Gaming

Is it Original? Here’s where the trouble starts. After all, Cartlon was essentially lampooning the way Tom Jones danced to his song. I also found this 2015 quote from Ribiero online about how he came up with the dance:

“The Carlton Dance was created when it said in the script: ‘Carlton dances. It was never even intended to be funny; it was just that he was dancing. The dance is ultimately Courtney Cox in the Bruce Springsteen video ‘Dancing in the Dark’; that’s the basis. Or in Eddie Murphy’s ‘Delirious’ video, ‘The White Man Dance’ as he called it. And I said, ‘That is the corniest dance on the planet that I know of, so why don’t I do that?'”

Uh Oh. Obviously if he copied the dance from someone else or from moves that were just archetypical then there is no originality. Without originality there is no protection.

Whose Dance is it Anyway? Another hurdle is that Ribiero did the dance as a character on a TV show. It is highly likely therefore that all intellectual property rights in the show and its elements (including the dance) belong to whoever owns the IP rights in the show and not to Ribiero.

Does Ribiero Have Any Other Recourse? Ribiero could try and argue that the copying is taking his likeness and using it for profit in violation of Right to Privacy and Right to Publicity laws. But once again – its not really his likeness. The characters don’t look like him, they don;t talk like him. They dance LIKE CARLTON. And he does not own Carlton. He is not Carlton. SO this claim would fail. For the same reason any attempt to register his dance as a trademark would also likely fail since it would be a trademark belonging to the show and not to Ribeiro.

Conclusion Sorry Alfonso there is no Santa Claus for you. I don’t see a way that this is a winnable claim. Now the companies involved may want to avoid bad publicity and try to strike a quick settlement along with a confidentiality agreement, but that’s a different story. If this gets in front of a judge I think Ribiero will likely be out of luck.

Follow me on Twitter @oscarmichelen

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