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!