Everyone Is Talking About “Fresh Prince” Star Alfonso Ribeiro’s Lawsuit Over the “Carlton Dance” in Fortnite – Here’s How He Could Have Strengthened His Case For Copyright Infringement

Alfonso Ribeiro’s lawsuit against Epic Games over the unauthorized use of the “Carlton Dance” in its mega-hit “Fortnite” (Ribeiro v. Epic Games, Inc., et al., CaseNo. 2:18-cv-10412 (C.D. Cal. December 17, 2018)) has drawn a lot of media attention. Ribeiro’s complaint against the video game maker was filed on December 17, 2018, and includes six grounds for relief, two of which are allege copyright infringement.

According to the complaint, Epic Games, Inc. et al. (“Epic Games”) “capitalized on Alfonso Ribeiro’s celebrity and popularity” by selling as an in-game purchase Ribeiro’s “signature dance.” For those who may be unfamiliar, Ribeiro is “known for his starring role as Carlton Banks from the hit television series The Fresh Prince of Bel-Air….” The complaint alleges that Ribeiro created what has come to be known as “The Carlton Dance” in 1991, and first performed it on The Fresh Prince of Bel-Air during the episode Will’s Christmas Show. Fortnite is a popular free-to-play video game which profits by selling in-game purchases.

The complaint alleges that Epic Games profited from selling Ribeiro’s digital likeness and proprietary dance in-game without Ribeiro’s consent. According to Ribeiro’s complaint, Ribeiro submitted an application for copyright registration of three variations of his dance two days before filing suit, on December 15, 2018.

Contrary to what many mistakenly believe, the fact that Ribeiro had not “formally” copyrighted his dance with the United States Copyright Office at the time Epic Games incorporated it into Fortnite is not fatal to his copyright infringement claims. What many confuse for “copyright protection” is actually the separate and distinct concept of “copyright registration.” Even if a work is not registered, the author of the work has a copyright to it at common law. This means that you can sue for copyright infringement even if you have not registered your work.

This does not mean, however, that registration is useless. In fact, quite the opposite is true. Registration provides a copyright holder with several benefits, including increased damages known as statutory damages (17 U.S.C. § 504(c)). Copyright registration also creates the rebuttable presumption of ownership and validity, two issues that almost surely will be litigated extensively here. While far from fatal to his case, Ribeiro’s copyright infringement claims could have been a touch stronger had he sought and obtained copyright registration for his dance immediately upon its creation.

It is still too early to determine how litigation will unfold, but it will be exciting to see Epic Games’s response!

The Twelve Days of Tort Law: Prejudgment Remedy

On the seventh day of Christmas, a marshal served on me! An application for prejudgment remedy!

Welcome to part seven of The Law Office of Christopher J. Mutchler’s festive twelve part pseudo-satirical series on Connecticut personal injury law: prejudgment remedy. Hopefully, you read Part Six of our series and you already know why you’re being sued. If not, you can check it out here:

What is a prejudgment remedy? Connecticut is one of very few states that allows an injured person to secure “collateral” for their injuries in certain situations. The Court’s order that such collateral be secured is called “prejudgment remedy,” and is governed by Chapter 903a of the Connecticut General Statutes (Conn. Gen. Stat. §§ 52-278a, et seq.). If the court finds that there is probably cause that judgment will be rendered in the amount sought, it may order an attachment of assets before the case even gets to trial.

The consequences of this are absolutely huge. If the case against you is strong enough, you can be forced to pay out damages almost immediately. Prejudgment remedy is thus often used as a tool to quickly force a settlement. If your dog did enough damage, your home could be liened; why fight it for years when you may be able to settle for less?

As always, nothing contained herein is intended as advice on any situation, and is simply insufficient to replace the advice of competent legal counsel. If you have been served with an application for prejudgment remedy, you should contact a lawyer as soon as possible. If you have been injured, only a licensed Connecticut attorney can determine whether prejudgment remedy may be appropriate in your case.

Life’s not always fair, but it may be fairer than you think it is. You shouldn’t have to suffer over someone’s else’s error. If you’re in a bind, the Law Office of Christopher J. Mutchler may be able to help.

The Twelve Days of Tort Law: Dog Bites

On the sixth day of Christmas, a marshal served on me! A suit alleging strict liability!

Welcome to part six of The Law Office of Christopher J. Mutchler’s festive twelve part pseudo-satirical series on Connecticut personal injury law: dog bites. In Connecticut, pursuant to Conn. Gen. Stat. § 22-357, a dog’s owner is “strictly liable” for any damages caused by his/her dog if that dog bites someone. 

What does is it mean to be “strictly liable” for something? Good question. Strict liability means that no matter the circumstances that gave rise to a particular event, you are on the hook for damages once that event occurs. In the context of dog bites, this means that if your dog bites someone, you are on the hook for their medical expenses no matter why your dog bit the person.

There are, of course, some exceptions to this. For instance, Connecticut law does not allow recovery for a person who first “teased,” “abused,” or “tormented” a dog that bit them. It is worth noting that no person under the age of seven may be said to have “teased,” “abused” or “tormented” a dog that bits them.

Now, because this is a Christmas series, you probably are wondering what ridiculous way I am going to say this can ruin your holiday. However, because this is an easy one I am going to leave the specifics to your imagination. Create a good story in your head, because on Day Seven the marshal will be bringing a prejudgment remedy and seeking to lien your house for it!

Life’s not always fair, but it may be fairer than you think it is. You shouldn’t have to suffer over someone’s else’s error. If you’re in a bind, the Law Office of Christopher J. Mutchler may be able to help.

The Twelve Days of Tort Law: Days Four and Five

On the Fourth/Fifth day of Christmas, a marshal served on me! Nothing. Days four and five are Saturday and Sunday, respectively, and I don’t know any marshals who are willing to effect service on weekends (if you know of any, please let me know!).

Instead, I spent the morning playing video games while my girlfriend thought I was writing this (love you, babe!) Tune in tomorrow to hear an exaggerated tale of how your dog could cost you your home this holiday!

Life’s not always fair, but it may be fairer than you think it is. If you’re in a bind, The Law Office of Christopher J. Mutchler may be able to help!

The Twelve Days of Tort Law: Non-Delegable Winter Duties

On the third day of Christmas, a marshal served on me! A suit for breach of non-delegable duty!

Welcome to part three of The Law Office of Christopher J. Mutchler’s festive twelve part pseudo-satirical series on Connecticut personal injury law: non-delegable winter duties. In this posting, you will learn what a non-delegable duty is, how such a duty can be breached, and why I felt the topic to be worthy of throwing off the melody of my opening line.

Understanding what a “non-delegableduty” is requires you to first understand what a “duty” is. Apart from my dry sense of humor, a recurring theme that I’m sure you’ve noticed in this series is one person owing a duty to another. This is because “duty,” or “duty of care” is the basis of most of personal injury law. A “duty” is an obligation, and the “duty of care” is just another word for the idea that we are obligated to act a certain way around others. Some duties can be delegated, or assigned contractually to other people. The duty of care cannot.

When a person fails to act as he or she should have, that person is said to have “breached” the duty of care. A shop owner who sees a spill but doesn’t bother to clean it up has breached the duty of care he owes to his customers. A driver who is flying down the fast lane while texting has breached the duty of care he owes to everyone else on the highway. A homeowner who allows his/her sidewalk to freeze over and does nothing about it has breached the duty of care he/she owes to passersby.

Easy, right? Great. Now for the last point. Why, pray tell, is this non-delegable duty business so important to discuss that I would do something so drastic as throwing off the melody of my opening line by a couple of syllables? Because it’s winter time, and ensuring that your sidewalk has been adequately cleared is a non-delegable duty. That means even if you paid Little Timmy from down the street $50.00 to shovel your sidewalk by hand knowing full well it would have cost less to have it done professionally, you(and NOTTimmy) can still be on the hook for damages if someone gets hurt on your icy walkway. You may still be able to recover from the little weasel based on indemnity, but that’s a whole other ball of snow (ha ha).

The takeaway from all of this is simple: if you don’t want to get sued, its probably best to brave the cold and make sure your sidewalk is taken care of, even if you paid someone else to do it.

I hope you enjoyed Part Two of the series. You can find the others at the link below:

Life’s not always fair,  but it may be fairer than you think it is. If you’re in a bind, The Law Office of Christopher J. Mutchler may be able to help!

The Twelve Days of Tort Law: Civil Liability for Underage Drinking

On the second day of Christmas, a marshal served on me! A complaint alleging that I acted recklessly!

Welcome to the second installment of The Law Office of Christopher J. Mutchler’s festive twelve part pseudo-satirical series on Connecticut personal injury law: civil liability for underage drinking. The law on this is pretty complicated, so before I get into whether you’re on the hook for medical bills if Uncle Bob’s college aged son falls flat on his face after his sixth glass of eggnog that he swears he didn’t know had alcohol in it, I want to talk about an important distinction: the difference between civil and criminal liability.

Very broadly and perhaps over-simplistically, there are two types of things for which a wrongdoer may be held liable: criminal offenses and civil offenses. Very generally, and again perhaps over-simplistically, criminal offenses are things that could put you in jail, and civil offenses are things that you just have to pay money for. As almost everyone is familiar with O.J. Simpson’s famous double homicide case, I will use that as a clarifying example. O.J. was found not guilty of the criminal charges that were filed against him, but was found liable for the civil charges filed by the victims’ families. This is why O.J. did not serve any time in prison, but was required to pay out a huge sum of money.

Got it? Good. Now that you know that the difference between the civil and criminal consequences of an action, you will appreciate the importance of my telling you that everything that follows is with regard ONLYto the civil consequence of the actions described. There are plenty of things that may not result in civil liability but will very probably carry a criminal penalty. Of course, even with respect to the specific civil actions that follow, this article is no replacement for the advice of competent legal counsel, and should not be relied upon for any determination of potential liability. Nothing contained herein should be interpreted as legal advice with regard to any specific situation, for which you should always retain competent legal counsel.

Okay, now on to the good stuff. Here’s a hypothetical that many may identify with. It’s Christmas day, and you’re hosting. Friends and family from all over the country have gathered joyously at your home, laughing cheerfully while recounting all that’s gone on in their lives since this time last year. There is a flurry of snow, but no more than a dusting is expected to stick until late tonight. Perfect. A chorus of toddlers accompanies the Bing Crosby album blaring in the background, and everything is wonderful. You politely excuse yourself, and walk back to the kitchen for a refill.

You mix yourself a Christmassy drink, excited for the expensive bottle of liquor you’ve been saving for today, and head back to the family. Your first sip is a little disappointing (it tastes just like the five-dollar-per-pint crap you used to drink in college), but you chalk it up to an unrefined pallet. As you leave, you notice your weird college-aged nephew, Douglas, eying you guiltily from the corner of the room.

“DOUGLASSSS!” you yell, slightly drunkedly as you poke Douglas in his ribs obnoxiously with your index finger. “How’s freshman year at State been treating you?”

It is clear that freshman year at State has not been treating Douglas well. He was a little on the pudgy side beforehe moved on campus from your neurotic sister’s house, and he has clearly been enjoying his new found freedom a little too much. His clothes are dirty, his hair is greasy, his face has broken out, and he’s added a good twenty-five pounds to his petite frame.

“It’s going grrrreeat, Cousin Pat!” he slurs in response. “Hey, I’m having a lot of fun at your party! This cheesecake is delicious! Only thing that would make it better is if it were rum cake! Ha ha ha ha! I’m just kidding. I’m too young to drink rum. Or any alcohol. Ha ha ha ha!”

Your name is not Pat, Douglas is not your cousin, and your suspicions are aroused.

“Glad to hear it, Douglas!” you reply. “Say, what do you have in that cup there?”

“What, this?” he fumbles, nervously. “Just a little decaf coffee. No alcohol here, no-sir-ee. Not for me, I’m only 18. That would be illegal, and I wouldn’t dream of doing something illegal. I’m just not that kind of kid, Cousin Pat!”

Annoyed, you remind Douglas of your name, and demand that he hand over his drink. You take a sip, and realize where your good liquor went. Now you’re faced with a choice: do you ruin the otherwise perfect holiday, or let this slide until later? His parents drove him here, and the only person he could really harm is himself. What should you do?

Well, criminal law and your own moral code may dictate otherwise (see why the distinction was important?), but as far a civil liability goes, you may have some reprieve. The Connecticut Supreme Court addressed a very similar issue in a 2014 case called Stafford v. Roadway.* In Stafford, thetwenty-year-old minor plaintiff showed up to a friend’s barbecue with a garbage bag full of beer (thirty beers, to be precise). While at the barbecue, the plaintiff drank about five of his beers and smoked some marijuana before taking off on foot for a bonfire scheduled later that evening. The plaintiff continued drinking all day, and was quite intoxicated by the time of the bonfire (“only four or five” of the original thirty beers remained at this point). The plaintiff continued to drink until he became so intoxicated that he fell asleep in a chair next to the fire.

After a period of time, the plaintiff woke up and tried to walk off towards the woods to relieve his bladder. Other guests, concerned for his safety, tried to get the plaintiff to sit down, but to no avail. As he was walking, he stumbled and fell into the bonfire. The plaintiff was taken to the hospital for his injuries, where his blood alcohol content was found to be 0.202. As a result of the fall, he suffered serious burns to his hands, forearms, and buttocks. He sued the host of the bonfire, among others, for his injuries.

That’s ridiculous, you say? Well, apparently the jury thought so too, because they returned a verdict in favor of the defendants. Primarily at issue during trial was whether the plaintiff’s own negligence exceeded that of the defendants’ to such an extent as to preclude liability. In other words, the jury was asked to decide whether something the plaintiff did rather than something the defendants did caused the plaintiffs injuries. The jury held that this was in fact the case, and the Supreme Court upheld the grounds for their verdict. After all was said and done, the defendants came out on the winning end.

So what does all of this mean for your drunk, underage nephew Douglas who has clearly had a rough couple of months off at State? Well, it means that at least as far as civil liability goes, you are safe to just let Douglas sleep it off. If he does something to injure himself, the mere fact that he is too young to drink legally is not going to relieve him of his duty to act responsibly.

I hope you enjoyed Part Two of the series. You can find the others at the link below:

Life’s not always fair, but it may be fairer than you think it is. If you’re in a bind, The Law Office of Christopher J. Mutchler may be able to help!

*Stafford v. Roadway, 312 Conn. 184, 93 A.3d 1058 (2014). 

The Twelve Days of Tort Law: Premise Liability

On the first day of Christmas, my in-laws served on me! A complaint alleging premise liability!

Welcome to the first installment of The Law Office of Christopher J. Mutchler’s festive twelve part satirical series on Connecticut personal injury law: premise liability. Let’s get to the question you’re all asking:

What is premise liability, and how can it ruin my holiday?

In Connecticut, people are obligated to make sure their guests aren’t injured on their property. Depending on who’s on your property and why, that duty is different. But because you probably won’t be having your plumber over on Christmas Day to fix the pipe that’s been leaking all month, we’ll focus here on social guests.

Social guests are people you invite over for fun. Your cousins, aunts, uncles, parents, friends and coworkers who are there for dinner of Christmas eve are all social guests. The law calls these people “licensees.” In Connecticut, you owe these people several duties, including the following*:

(1) a duty not to intentionally harm them or set a trap for them;

(2) a duty to exercise due care with regard to him/her;

(3) a duty to warn of hidden dangerous conditions known to you; and

(4) a duty to warn of any dangerous activities that you are engaged in.

In English, you say? Let me give it a shot.

Connecticut law requires first that you not do anything on purpose to harm your guests, and prohibits you from setting traps for them. Now, this doesn’t mean you can sue your Great Aunt Judy for roping you and you’re fiancé into an uncomfortable conversation about living in sin. Injury law is concerned with physical injuries. However, if your Great Aunt Judy invited you upstairs under the guise of meeting her favorite cat, Mittens, but instead lured you to fall through a fake step, you might have a cause of action for premise liability.

Connecticut law also requires you to exercise “due care” with regard to your guests. While what precisely due care is in any given situation is a topic of great scholastic debate, suffice it to say you’re probably on the hook for damages if you for some reason decide mop your floor after the seventh round of drinks and send Uncle Jim to “hurry and get the eighth” without warning him.

You must also warn of any dangerous conditions you know about, like the shaky railing going down into the basement, and must let your guests know if you are doing something dangerous when they arrive (like playing with fireworks).

So that about sums it up! Obviously, this list is, of course, non-exhaustive, and is by no means a suitable substitute for the advice of competent legal counsel with respect to any particular issue concerning your own liability or the liability of others.

I hope you enjoyed installment one of The Law Office of Christopher J. Mutchler’s festive twelve part series on Connecticut personal injury law! You can find the rest of the series by following the link below:

Life’s not always fair, but it may be fairer than you think it is. If you’re in a bind, the Law Office of Christopher J. Mutchler may be able to help!

The Twelve Days of Tort Law: A Festive Compendium of Connecticut Personal Injury Law

In the spirit of the holidays, I thought it would be fun to do a satirical overview of Connecticut personal injury law. Join The Law Office of Christopher J. Mutchler, a Limited Liability Company over the course of the next twelve days to share a laugh and learn some tort law! Links to each portion of this twelve-part series will be provided below as they become available. Happy holidays!

Life’s not always fair, but it may be fairer than you think it is. If you’re in a bind, The Law Office of Christopher J. Mutchler may be able to help.

“Copyright Trolling” – How Connecticut Businesses Are Getting Burned For Streaming Music

You may have heard about restaurants and other small business in Connecticut being sued over playing music for their customers. It can be extremely damaging to a business, and it seems to be happening more and more. What’s going on?
Well, these types of actions tend to start off when a mass licensing agency sends one of its employees to a business location, and tells the employee to write down every song that is played while they are there. If someone had done this at your business, chances are good that you would never even have noticed them. The employee is typically instructed to act naturally, and to make full use of the establishment.  At a restaurant, the employee may sit down and eat; and at a store, he/she may actually shop (it sounds like a great job).
The employee then sends the list he made to his boss, who runs it through a computer and determines which of those titles the company owns a license to. If (or more likely, when – the registries are pretty extensive) there is a hit for a song that the licensing company has an interest in, legal action begins.
Generally, a cease and desist letter is sent to the business before anything gets taken further. Often times, this letter will include a settlement demand and a draft complaint of a complaint to be filed in Federal Court. These documents will typically allege a litany of Federal claims, most often involving copyright infringement (I call this practice “copyright trolling,” due to the similarities between it and patent trolling). While which particular law (if any) was violated depends heavily on the situation, the result is often the same.
If a business owner has not looked into the surrounding law (e.g., 17 U.S.C. § 110), the licensing company may have him or her “dead to rights.” Intellectual property law is astoundingly complex, and often requires oddly specific things (for instance, the number of speakers through which music is played may be the key to whether a business owner has to pay). Relatively few attorneys practice intellectual property law, and copyright is an area that is constantly changing to react to technology. Further, copyrights are governed by Federal law, and Federal Courts are notoriously slow, in part because of the complexity of their procedural rules (in contrast to those of State court).
The result of all this is that settlement is often times much cheaper than fighting. Between the complexity of governing law and the general practice of barring disclosure after settlement, many small business owners become aware of this problem after they have been sued.
So what can be done? Well, that depends on where you are in the process. If you are a business owner looking to avoid suit, contact an attorney for advice on how to avoid this and other common pitfalls. If you have received a cease and desist letter, take the letter seriously. Do not, under any circumstance, ignore it; doing so could result in increased damages. If you are unsure on how to proceed, contact an attorney.
Life’s not always fair, but it may be fairer than you think it is. If your business is in a bind, The Law Office of Christopher J. Mutchler may be able to help. Give us a call, shoot us a text, send us an email, or Contact Us.
By:    Christopher J. Mutchler, Esq.