Fortnite Lawsuit Over The Carlton
The Carlton.
You’ve seen it at parties, you’ve seen at the club, and unfortunately, you may have even seen someone perform it at a wedding. The famous dance that Carlton Banks performed on the hit T.V. series, “The Fresh Prince of Bel-Air,” has become so iconic that it can be recognized almost immediately. The dance is so popular that it has been incorporated into Fortnite, which may be arguably the most popular game today.
However, not everything is going smooth and dandy like Carlton’s dance moves. Alfonso Ribeiro, the actor who played Carlton Banks, is suing the producers of Fortnite, Epic Games for copyright infringement over the use of The Carlton.
What happened exactly?
Fortnite has a popular feature called Emote, where players can make their avatar dance. Fortnite’s Emote feature has several popular dances, including The Carlton. However, it was allegedly not authorized by Ribeiro for Epic Games to use The Carlton as an Emote. More specifically, it is alleged that “Epic added the Fresh emote [The Carlton] to intentionally exploit the popularity of Ribeiro and The Dance without providing Ribeiro any form of compensation.”
How can Ribeiro sue for copyright infringement?
Ribeiro specifically alleges that using The Carlton is direct copyright infringement. 17 U.S.C. § 102 list the categories of what may qualify for copyright protection. Under 17 U.S.C. § 102 “[c]opyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.”
The Carlton may qualify as copyrightable subject matter as a choreograph.
To read more about 17 U.S.C. § 102, click here.
What rights come with a copyright?
When a work qualifies for copyright protection, the copyright holder gets certain rights. These rights under 17 U.S.C. § 106 include the right to:
(1)reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
To read more about 17 U.S.C. § 106, click here.
What are some issues that may arise in the lawsuit?
Although The Carlton is intertwined with Ribeiro himself, The Carlton was created during The Fresh Prince of Bel-Air. That would mean there may be issues as to who actually owns the copyright to The Carlton. Did Ribeiro sign a work for hire agreement which would thereby assign the rights to the production company? Although that may not yet be clear, Ribeiro in his complaint did say “Ribeiro is in the process of registering The Dance with the United States Copyright Office. On December 15, 2018, Ribeiro submitted an application for copyright registration of three variations of The Dance and assigned Copyright Office case numbers 1-7226013364, 7226013290, and 1-7225814191.”
Other causes of action filed against Epic Games.
Ribeiro also filed a couple other allegations in the complaint. He also alleged “[t]hrough their use of The [Carlton] Dance as an in-game dance emote that can be purchased as the Fresh, Defendants misappropriated Ribeiro’s identity. The Fresh emote depicts Ribeiro performing The [Carlton] Dance.” Violation of rights of publicity and unfair competition were some other allegations contained in the complaint.
Violation of Rights of Publicity.
Ribeiro alleges that Epic games violated his rights to publicity and “used [his] likeness and The Dance to generate significant wealth by: 1) selling the infringing Fresh emote directly to players; 2) advertising the Fresh emote to attract additional players, including Ribeiro’s fans or those persons familiar with The Dance to play Fortnite and make in-game purchases; 3) using Ribeiro’s fame to stay relevant to its current players to incentivize those players to continue playing Fortnite; 4) impliedly representing that Ribeiro consented to Epic’s use of his likeness; 5) intentionally causing the erroneous public association between the Fresh and The Dance; 6) creating the false impression that Ribeiro endorsed Fortnite; and 7) inducing and/or contributing to the performance and misattribution of The Dance by others.”
Unfair Competition.
For the unfair competition allegation, Ribeiro alleges Epic Games’ “copying and relabeling of Ribeiro’s The Dance has caused confusion, deception, and mistake by the creation of the false and misleading impression that [Epic Games] were the creators of The Dance or that Ribeiro was somehow affiliated, connected, or associated with [Epic Games] or provided sponsorship or approval to [Epic Games].”
Oh no! Am I going to get sued for using The Carlton and dancing my heart out?!
Fear not, the answer is most likely no. You probably won’t get hit with a lawsuit if you’re at a party having fun doing The Carlton. However, you may run into issues if you are using The Carlton for videos you make or sell.
What are your thoughts on the lawsuit? Leave a comment below to let us know what you think!
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Disclaimer: This article is not legal advice. It is only for educational or entertainment purposes only. Please do not use the article or contents of the article without permission. For legal advice and questions, please contact registered Patent Attorney Vincent LoTempio.
