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The U.S. Copyright Office is skeptical about Fresh Prince of Bel-Air actor Alfonso Ribeiro’s ownership claim over the signature “Carlton Dance,” which became famous after a 1991 episode of the Will Smith series.
In correspondence last month that was surfaced on Wednesday in California federal court, Saskia Florence, a supervisory registration specialist in the Office’s Performing Arts Division, told Ribeiro’s attorney that registration must be refused because his claimed “choreographic work” was a “simple dance routine.”
“The dancer sways their hips as they step from side to side, while swinging their arms in an exaggerated manner,” wrote Florence (see here). “In the second dance step, the dancer takes two steps to each side while opening and closing their legs and their arms in unison. In the final step, the dancer’s feet are still and they lower one hand from above their head to the middle of their chest while fluttering their fingers. The combination of these three dance steps is a simple routine that is not registrable as a choreographic work.”
Take-Two Interactive, publisher of the game NBA 2K, is now seizing upon the refusal in support of the argument that movements for the “Carlton Dance” are not protectable. Ribeiro is suing Take-Two as well as the publisher of Fortnite over special features that allow game players to have their avatars perform the dance.
In a dismissal brief (read here), Kirkland & Ellis attorney Dale Cendali makes some of the same arguments she did earlier in the week in an attempt to reject a similar lawsuit over Fortnite from the rapper 2 Milly.
But there are particular contentions specifically directed at Ribeiro’s claim.
For instance, the fact that the “Carlton Dance” made its initial appearance on a nationally televised show is no small thing.
Ribeiro “admits to creating the alleged ‘Dance’ for the Fresh Prince of Bel-Air series, but did not try to register that ‘Dance’ with the Copyright Office — presumably because he knows that he does not own the copyright,” states the motion. “The copyright notice for the episode in which it first appeared … lists solely ‘National Broadcasting Company, Inc.’ Thus, Plaintiff’s copyright claims fail as his allegation that the ‘Dance’ was created for an episode owned by NBC means that he has not plausibly alleged ownership of a valid copyright.”
The issue of whether the “Carlton Dance” — even if protectable — is owned by Ribeiro or maybe someone else also came up upon Ribeiro’s attempt at a copyright registration. The actor submitted his performance of the dance on ABC’s Dancing With the Stars. An examiner at the Copyright Office wrote back.
“Since Mr. Ribeiro performs a choreographic work with his professional dance partner, Witney Carson, and internet sources indicate that most of the professional dancers on this program create the choreography for their celebrity partner, we question whether the application names the correct author or authors for this work,” stated the letter (read here).
The examiner then asked, “Was Alfonso Ribeiro the sole author of the entire dance routine performed on the submitted excerpt of Dancing With the Stars as stated on the application? Further, because the footage deposited is a professional production aired on ABC, we question whether Mr. Alfonso and Ms. Carson’s appearances, as well as any contributions made to the work deposited, were created under a work made for hire agreement.”
A failure to register doesn’t necessarily doom the lawsuit, although the U.S. Supreme Court is currently sorting out prerequisites for copyright litigation.
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