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US Copyright Office rulings on requests for dance copyrights

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

We recently posted a blog about three lawsuits alleging that the owner of Fortnite, the popular video game, violated copyrights in three dances reproduced in the game without permission or credit. As we described, dance choreography can be registered with the U.S. Copyright Office, but the copyright requirements for dance are complicated and significant.

Basically, a brief movement is not protectable, but “composition and arrangement of a related series of dance movement and patterns organized into a coherent whole” are required, according to the Office.

The New York Times has reported that, according to the plaintiffs’ lawyer, the Copyright Office has issued mixed results:

  • Alfonso Ribeiro’s application for a copyright in the “Carlton Dance” that he created as an actor on “The Fresh Prince of Bel-Air” was rejected as a “simple routine.” Two of his three applications have been denied and one is still pending. He will request reconsideration.
  • Russell Horning or the “Backpack Kid” received copyright registration for his “variant” of “The Floss.”
  • 2 Milly’s copyright application for the “Milly Rock” was also refused and he will also ask for reconsideration.

The Times cited one legal expert who was not surprised at the ruling on the Carlton Dance. Professor Robert Brauneis of George Washington University Law School compared the repetitive movements of the dance to a “word or a short phrase” not eligible for copyright no matter how long it is repeated. The professor said the court would consider the Copyright Office’s rulings.

It will also be interesting to see what the court does with the other claims for violation of the right of publicity and unfair competition given the potential impact on the copyright claims of the Copyright Office’s findings.

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