Copyrighting a Dance
While patent and trademark protection may require years of effort to obtain, most copyright registrations happen fairly quickly. Of course, this is only the case when the material that is submitted for copyright registration is considered appropriate for such registration.
A book, the script for a play, a recorded song and a painting all are examples of items that are suitable for copyright registration. However, is it possible to obtain a copyright registration for a dance?
Actor Alfonso Ribiero, perhaps best known for the role of Carlton Banks on the 1990s television series The Fresh Prince of Bel Air, performed a routine on the show that is popularly known as the “Carlton Dance.” Mr. Ribiero revived the dance during his stint on Dancing with the Stars in 2014. The dance had so far entered the pop-culture consciousness that it also figured in two video games, Fortnite from Epic Games and NBA 2K from Take-Two.
Ribiero objected to the appropriation of his signature dance in these video games, so he decided to obtain a copyright registration on the “Carlton Dance.” Moreover, he filed a lawsuit for copyright infringement against both video game developers.
1976 Copyright Act
Ribiero’s idea to seek copyright protection for a dance wasn’t outlandish. The U.S. Copyright Office allows for the protection of choreography and pantomime. It was provided for in the 1976 Copyright Act, which for the first time included both art forms as appropriate subject matter for copyright protection. Prior to this new law, certain choreographic works could receive copyright protection, but only if they included a dramatic element, characters that showed development and some sort of story arc.
The 1976 act expanded choreographic protection to dance works that did not necessarily follow a plot or have characters. Artists who wanted formal protection of their work submitted it in some form to the U.S. Copyright Office. A video or other visual recording is the most frequent medium in which a choreographic work is submitted for registration. Alternatively, some artists submit a text description along with drawings or pictures. A written dance-notation format also is acceptable. Regardless of the medium, the submission must be in a format that will allow for accurate future performances.
The expansion of the law did not mean that all dances are eligible for copyright protection. Through the years, the copyright office has made clear that social dances and discrete dance steps are not protectable by copyright. A football player cannot register their end-zone dance, for instance.
It seems that the U.S. Copyright Office believes that the “Carlton Dance” falls into this latter category. An examiner at the office responded to Ribiero’s application for a copyright by saying that the movements were a “simple dance routine” that could not be registered.
The examiner described the three main steps that make up the Carlton routine, noting that their simplicity does not rise to the level of being a choreographic work. In conclusion, she refused to register the dance.
Ribiero does have a chance to appeal this decision, and the lawsuit is still ongoing. Nonetheless, things are looking more hopeful for Epic Games and Take-Two. The decision made by the U.S. Copyright Office may have a significant bearing on the civil lawsuit. Already, the defendants in the lawsuit have filed motions to dismiss. Their argument is that because the dance is not protectable as a copyright, it follows that Ribiero should not be able to sue the video game designers. Moreover, the defendants question Ribiero’s ownership of the dance since it was first performed on a TV show that is owned by a network.
Ribiero is likely to oppose the motion to dismiss in the near future in addition to appealing the decision by the U.S. Copyright Office. His success or failure in these endeavors may provide interesting case law for future artists who believe that they are entitled to copyright protection.
Author: Jeff Williams
Jeff Williams is an experienced mechanical engineer and lawyer that consults closely with clients in a strait forward and clear manner. He brings a particular set of strengths and unique perspectives to the firm.
Jeff received a B.S. in Mechanical Engineering from Arizona State University in 2005. He was an engineer for a number of years at a number of large corporations before pursuing his law degree. He graduated from Texas A&M University School of Law (formerly Texas Wesleyan University School of Law) with a J.D. in 2010. By combining his education and prior work experience into the field of intellectual property law, Jeff has developed key skills to fully assist clients.