The ‘Carlton dance’ couldn’t be copyrighted for a Fortnite lawsuit

The US Copyright Office refused to register The Fresh Prince of Bel-Air star Alfonso Ribeiro’s “Carlton dance” routine, likely weakening lawsuits against two game studios that copied the dance. In new legal filings, Take-Two Interactive produced letters and emails from the Copyright Office, showing serious concern over whether the dance qualified for copyright protection and, if it could, whether Ribeiro even owned the rights.

Ribeiro sued Take-Two for copying the Carlton dance, which he created while playing Fresh Prince character Carlton Banks, for a celebratory dance gesture in NBA 2K. He’s also filed a lawsuit against Epic Games, which used a version of the Carlton dance in Fortnite. As The Hollywood Reporter notes, Take-Two filed a defense earlier this week, asking a judge to dismiss the case. It argues that Banks’ dance is too basic to be protected by copyright, which only covers more complex “choreography.”

A letter from the Copyright Office backs up that argument — at least, for one of three dance variations that Ribeiro submitted. The letter calls his submission “a simple routine made up of three dance steps” and refuses registration. “The fact that a dance or movement may contain more than a trivial amount of original authorship is irrelevant,” it reads. In other words, even if Ribeiro’s dance was unique and distinctive, it’s not protected by copyright.

One of Ribeiro’s variations wasn’t rejected, but in that case, the Copyright Office seemed dubious that he owned the dance. He apparently submitted a video of a Carlton dance performance from ABC’s Dancing with the Stars, and the office asked for more detail about whether ABC (or his professional dancing partner Witney Carson) might hold the rights to its choreography instead.

These rejections could spell trouble for Ribeiro’s case against Take-Two and Epic. If the Copyright Office takes a hard line against registering short dances or a judge accepts Take-Two’s arguments, it could also damage at least two other lawsuits involving Fortnite dances, like the one from rapper 2 Milly, who took Epic to court for his “Milly Rock” dance.

Ribeiro’s case isn’t completely interchangeable with other Fortnite suits, however. He created the Carlton dance while playing a fictional character on someone else’s television show, which raises unique questions about who owns the routine. (As a celebrity, Ribeiro is making a separate non-copyright defense, too, arguing that Epic and Take-Two have appropriated his likeness.) Those questions might ultimately doom his copyright application, but they wouldn’t prove you can’t copyright a dance like the Carlton.