Does Someone Own Everything? The Carlton Dance and Hakuna Matata

Two recent cases in the news demonstrate the dangers of failing to consider judicious management of intellectual property rights with regard to products that include expressive content or identifiers.

The wildly popular video game – Fortnite – includes animated dances that are sold to game players as “emotes.” The emotes can then be attached to your avatar character in the game. One such “emote” is a dance labeled the “Fresh” which mimics a dance associated with Alfonso Ribeiro, who played the character “Carlton” on the TV show, The Fresh Prince of Bel-Air.” Epic has not paid any third-party rights or royalties for these dances.

Dances are a form of expression and original dances may be registered as copyrights. Mr. Ribeiro has filed suit against Epic for copyright infringement, misappropriation of Ribeiro’s publicity rights, and a trademark-style infringement for false association of Fortnite with Ribeiro. There are serious questions as to whether the “Carlton Dance” is truly original and, also, the extent to which such rights can be asserted almost 18 years after the first publication on the TV show. And, because Ribeiro is attempting to register the copyright on his dance after Epic’s alleged infringement in Fortnite, even if his suit is successful, his damages will be limited to lost profits (as opposed to “statutory copyright damages,” which are easier to prove).

In another development, the Disney Corporation has run into some flack for registering the Swahili Term, “Hakuna Matata” as a trademark covering tee shirts and other related products. Hakuna Matata means, “No Problem” in Swahili and a petition has been filed on accusing Disney of “colonialism” and appropriation of African culture for commercial purposes. As a legal matter, using common terms as trademarks for goods or services is not new. Terms like “Apple,” “Yahoo,” and “Vaya con Dios,” have been used and registered as trademarks. In this case, the legal issues are not as interesting as the cultural reaction against the perceived appropriation of an African term by an American corporation – an apparent allegation of “cultural imperialism” or “appropriation.”

The balance among individual intellectual property rights, group cultural identification, and public rights of free expression can be complex and emotionally charged. At Kennyhertz Perry, we’re attuned to our creative clients who bring expressive content to the world and we are adept at navigating the practical and legal currents that are crucial to success in this rapidly changing field.      

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