The United States Copyright Office said that a dance first popularized on the TV show “The Fresh Prince of Bel-Air” could not be copyrighted by the actor who created it, according to court documents filed this week.
Alfonso Ribeiro, the actor who played Carlton on the show, is one of several performers who has sued video game makers in recent months saying that dances, which can be purchased and then performed by avatars in games, have been stolen from them. Mr. Ribeiro sued Epic Games, the maker of Fortnite Battle Royale, as well as Take-Two Interactive Software, which makes NBA 2K16.
But the copyright office was not convinced that what Mr. Ribeiro called the Carlton Dance — in which he enthusiastically swings his arms and sways his hips — was eligible for copyright protection, saying it was a “simple routine,” not complex enough to clear the bar.
“That does not surprise me in the least,” said Robert Brauneis, co-director of the intellectual property program at George Washington University Law School.
“It’s like a word or a short phrase,” Professor Brauneis said. “The copyright office has always taken the position that words or phrases are not copyrightable, and this is exactly like a word or a phrase in a dance. You could repeat that word or phrase indefinitely — here I’m shaking my hips, here I’m shaking my hips, again and again — but that repetition doesn’t make the fragment subject to copyright protection.”
Courts are not bound by the copyright office’s decision and could reach a different conclusion, but Professor Brauneis said the copyright office’s determination would be taken into consideration.
Mr. Ribeiro’s lawyer, David L. Hecht, said he planned to ask the copyright office to reconsider, because even if the individual movements are considered simple, the way his clients have arranged those movements should be considered choreographic works.
“It’s the same as when you combine notes in a musical composition,” he said. “Those compilations would be entitled to copyright protection under the law.”
Mr. Hecht said that Mr. Ribeiro submitted three copyright applications. Two have now been rejected and one is still under consideration. Mr. Hecht said that a request for copyright by the rapper 2 Milly was rejected when he tried to register the Milly Rock, and that he too will ask that the copyright office reconsider. But some of his clients have had better luck. Russell Horning, a teenager known as “Backpack Kid,” was able to register with the office a 30-second dance that Mr. Hecht described as a “variant” of a dance called the Floss.
Epic Games did not immediate respond to requests for comment on Friday. Take-Two Interactive declined to comment.