Intellectual Property

Do The Hustle? A Cautionary Tale of Copyright, Choreography, And 'The Carlton'

Copyrightability of choreographic works should arguably not be as limited as the Copyright Office claims.

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Alfonso Ribeiro (Photo by Robin L Marshall/Getty Images)

For those who have a love for dancing, the activity is both a passion and an art form — a means of expression that can stir the soul.  For those who appreciate it, such expression ranges from the fluid ballet choreographed to Tchaikovsky’s Swan Lake or the edgy (and groundbreaking) moves of the late Michael Jackson and his backup dancers in his Thriller video.  By the same token, certain moves can also stir a laugh, such as the disjointed (and quite frankly hilarious) happy dance routine made by the character Carlton Banks in the television series The Fresh Prince of Bel-Air in the 1990s. In fact, it is those happy-go-lucky moves (referred to as “The Carlton”) that are causing a bit of a copyright stir — when it comes to the copyrightability of such expression, there is more to this issue than just some fancy footsteps.

The stir arises from the use of “The Carlton” as “emotes” in some video games — ritualistic short dances the players can do while playing the game.  Apparently, the moves known as “The Carlton” were added to the video game NBA 2K18 (published by 2KSports, a part of Take-Two Interactive Software, Inc.) as its “So Fresh” emote, as well as in the wildly popular videogame Fortnite (published by Epic Games).  The actor that portrayed Carlton Banks in the series, Alfonso Ribeiro, filed a copyright application for “The Carlton” as well as two other variations on the dance moves with the U.S. Copyright Office in December of 2018.  Thereafter, he filed suit against Take-Two interactive and Epic Games, claiming copyright infringement.

Unfortunately for him, the Copyright Office rejected registration of one of the three variations of the dance routine (namely, The Dance by Alfonso Ribierio —Variation B), claiming it was “a simple dance routine.” First, the Copyright Office drew a distinction between a “dance” and “choreography,” defining choreography “as the composition and arrangement of a related series of dance movements and patterns organize into am integrated, coherent and expressive whole.” Additionally, the Copyright Office reiterated that “[i]ndividual movements or dance steps themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine or the second position in ballet” (emphasis added). As a result, a work of choreography can only be registered “when it contains a sufficient amount of choreographic authorship.”  When applied to the dance moves at issue, the Copyright Office found Variation B lacking, considering “The Carlton” no more than “a simple dance routine” that cannot rise to the level of copyrightability, no matter the amount of creative expression. Guess they never tried to do that dance themselves.

As for one of the other variations, the Copyright Office is questioning Mr. Ribiero’s ownership of those dance moves, as the specimen he provided to the Copyright Office was a copy of his performing “The Carlton” on television on Dancing With the Stars with his professional dance partner Whitney Carson, raising the possibility of ownership by the network (ABC) or Ms. Carson.  This is a valid point even for the other variations — if Mr. Ribiero created “The Carlton” as part of performing as a regular on the TV series (as opposed to creating it outside of his talent agreement with the production company), there may be an argument for ownership by the production company or the network.  Nevertheless, the focus here is on copyrightability of “The Carlton” and the difficulty in determining same.

Mr. Ribiero is not alone — rapper Terrence “2 Milly” Ferguson sued Epic Games over the ostensible use of his “Milly Rock” dance moves in its “Swipe It” emote, as well as the mothers of Russell “Backpack Kid” Horning (for the use of “Flossing”) and the “Orange Shirt Kid” (for using “The Random” dance move).  I get it — there is a perception that video game publishers incorporating such dance moves are exploiting another’s creative expression without a license.  Unfortunately, the Copyright Office’s stance on these dance moves and choreography unintentionally leaves something to be desired.

By its very nature, there is no bright-line test for what would be considered a copyrightable choreographic work of authorship, but that doesn’t mean that the demarcation for copyrightability can’t be clarified.  In its policy statement for Registration of Claims for Compilations in June 2012, the Copyright Office took the position that “composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent, and expressive whole” would qualify for copyright protection.  I don’t know about you, but I do not find the standard of “an integrated, coherent and expressive whole” to be a lot of help.  The Copyright Office finds that “social dances, simple routines and other uncopyrightable movements” do not rise to the level of choreographic works deserving of registration, but a combination of these different moves in an original way does not qualify as “an integrated, coherent and expressive whole”?  If someone came up with a way to choreograph a combination of rhumba, samba, and some tango steps (“integrated”) that somehow work together (“coherent”) in an original routine (“expressive”), such expression would not be copyrightable because it is merely a combination of “social dance steps”?  Although the Copyright Office seems to embrace this position, it rubs against protecting original expression — questions abound with no easy answers.

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This issue is far from being settled, and one can only hope that additional guidance will be provided either through reconsideration of Mr.Ribiero’s copyright application or through the courts. I don’t know whether “The Carlton” will ever rise to the level of copyrightability, but the point here is that copyrightability of choreographic works should arguably not be so limited. From my perspective, I can’t help but root for him here in getting more clarification — that would be something for which we could all do a little dance in celebration.

Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

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