Waltzing into Court

A few weeks ago I wrote about rapper 2 Milly and his lawsuit against Epic Games, the creator of ‘Fortnite,’ basically the most popular video game on the planet. 2 Milly sued Epic for copying his dance, the “Milly Rock.” As players advance in the game, they can earn “emotes,” or dance moves used to celebrate victories. Those players wanting a shortcut can also purchase emotes for about $5 each.

2 Milly is purportedly the trailblazer in these lawsuits, as other dancers have followed. Russell Horning, also known as the “Backpack Kid,” filed suit against Epic over Fortnite’s use of his dance called the “Floss.”

The latest celebrity to throw his dance shoes into the ring is actor Alfonso Ribeiro, best known for his role as Carlton Banks, Will Smith’s cousin on the ‘90s sitcom ‘The Fresh Prince of Bel Air.’ A preppy nerd who loves v-neck sweaters, Carlton is probably best remembered for his signature dance move, The Carlton.

Ribeiro claims he first performed the dance, which is a joyous, arm-swinging boogie often performed to Tom Jones’ hit “It’s Not Unusual,” during the show’s 1991 Christmas episode. Ribeiro, who is currently the host of “America’s Funniest Home Videos,” also performed The Carlton when he competed on “Dancing with the Stars” in 2014.

It’s now also an extremely popular emote in Fortnite known as ‘The Fresh.’

So like 2 Milly and the Backpack Kid, Ribeiro is also headed to court. Earlier this month he filed two lawsuits against Epic and also Take-Two Interactive Software Inc., creator of the NBA 2K series, and several of its subsidiaries, which also features the dance. Ribeiro alleges that he is “inextricably linked” to The Carlton and that the developers “unfairly profited” from using his likeness and from exploiting his “protected creative expression.”

Ribeiro is asking a California federal court to bar the game developers from using, selling or displaying the dance. The suits also indicate that Ribeiro is attempting to copyright the dance.

According to the U.S. Copyright Office, works of art that are protectable include “rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage.” Although the video games just feature a segment of The Carlton, even using small samples of a copyrighted work can constitute infringement so long as it is a recognizable element of the copyrighted work.

Ribeiro’s biggest hurdle will be establishing that the dance is original. In 2015, Ribeiro said, “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?’”

In addition, Ribeiro performed the dance in his capacity as an actor on a TV show. Therefore, it is likely that any intellectual property rights generated from the show belong to whoever owns the rights to the show, not the actors.

Attorney David L. Hecht is representing Ribeiro, 2 Milly and the Backpack Kid, and says, “More plaintiffs are coming out of the woodwork each day.”

With Fortnite generating over $1 billion in the last year, I bet he’s right.

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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