Legal Victory for Fortnite Seems Imminent After Copyright Office Denies Registration to the Owner of the Carleton Dance”

March 8, 2019

This past week, the United States Copyright Office declared that the famous “Carlton” dance was ineligible for copyright protection because “the work submitted for registration [was] a simple dance routine.” The copyright office states that in order to receive protection for this sort of dance, it must fall under the category of a choreographic work: a related series of dance movements and patterns organized into an integrated, coherent, and expressive whole.

In their argument, the copyright office broke down the “simple routine” into three steps: (1) the dancer sways their hips as they step from side to side, while swinging their arms in an exaggerated manner; (2) the dancer takes two steps to each side while opening and closing their legs and arms in union; and finally (3) the dancer’s feet are still and one hand is lowered from above their head to the middle of their chest while fluttering their fingers. Unfortunately for Alfonso Ribeiro, the actor that played Carlton on the famous television series The Fresh Prince of Bel Air, this determination meant his dance was ineligible for copyright protection.

Without a registered or protectable copyright, an artist is not able to prevent others from using his idea or expressions that were unable to receive protection. In the instant case, this determination by the Copyright office will effectively destroy Ribeiro’s pending lawsuit against Epic Games, Inc. filed in December of last year for infringing his intellectual property rights related to the “Carlton”. However, this is not the end of legal matters for Epic as they are still facing a multitude of lawsuits, including two from famous rappers BlocBoy JB  and 2 Milly for infringing their intellectual property rights.

Overall, the rejection of Ribeiro’s copyright registration for the “Carlton” may be telling for the outcome of the other cases involving dances used as emotes in Fortnite due to their similar lengths and complexities. ff

At the heart of each complaint against Epic Games, Inc., is the company’s illegal use of their dance moves which are sold and then used in their video game Fortnite. In layman’s terms, the artists all argue that Epic should not be allowed to make money off dances that they were responsible for inventing and should share the profits with the creating artist. Many of the dances sold in the game as “emotes” are simple, short dance sequences similar to the Carlton dance. What will be dispositive of these lawsuits will be whether the dances amount to a choreographic work and not a simple dance routine: if they are deemed simple dance routines, all suits will be dismissed because no copyright protection exists.

In Epic’s motion to dismiss 2 Milly’s lawsuit concerning the famous dance, the “Milly Rock”, the company argued that “[c]opyright law is clear that individual dance steps and simple dance routines are not protected by copyright, but rather are building blocks of free expression, which are in the public domain for choreographers, dancers, and the general public to use, perform, and enjoy.” In support of their motion, Epic has also cited Copyright Office guidance, precedent, and legislative history to argue that simple dance moves are not the kind of ideas that can be protected.             Overall, the rejection of Ribeiro’s copyright registration for the “Carlton” may be telling for the outcome of the other cases involving dances used as emotes in Fortnite due to their similar lengths and complexity. As for Epic Games, their nearly $2.5B dollar earnings from Fortnite seems likely to remain with them due to the copyright office’s aligned rationale: simple dances are not original enough to be protected.

Lee Nanney, 18 February 2019