Emotes, the "Carlton Dance" and Copyright
Actor Alfonso Ribeiro has been told he cannot copyright the "Carlton Dance" his character performed in the hit US sitcom Fresh Prince of Bel-Air. Ribeiro, who played Will Smith's pretentious cousin Carlton Banks in the popular TV show, had tried to sue both Take-Two Interactive and Epic Games over use of the routine as an emote in the video games NBA2K16 and Fortnite. The US Copyright Office's denial of the claim was revealed in a motion to dismiss Ribeiro's lawsuit against Take-Two Interactive. Although a court is not bound by the determination, it is very likely that it will take it into consideration. A hearing on the motion to dismiss the lawsuit is scheduled for 18th March. If successful it will effectively end any current legal action taken by Mr Ribeiro and potentially set a precedence for any future lawsuits of this nature. Or will it?
We live in curious times when existing laws regarding copyright and the protection of intellectual property struggle to keep up with the digital age. The Ribeiro case reminded me of brouhaha from late 2017 when singer Taylor Swift sought to copyright phrases from her album Reputation "in order to use them on a wide range of merchandise that includes everything from guitar picks to t-shirts". And then we have the ongoing culture war between Star Wars fans and Disney, regarding fan films and the like. Regardless of which side of the debate you support, these situations highlight the paradox of popular culture. People absorb and the re-iterate the tropes and motifs that appeal to them, but unlike traditional mediums such as the written word, determining who is the “owner” of the source content is far harder. There may well have to be a recalibration of such things in the not too distant future and like any big legal change it may prove to be an uphill struggle and will have substantial consequences.
Which brings me back to video games and in particular emotes, that are so popular among players. I have no idea what the specific psychology is that makes these short-animated vignettes so enthralling, but gamers desire them and that is sufficient for them to be monetised and become valuable source of revenue to publishers. Furthermore, many of these emotes have their roots in pop culture, which makes Ribeiro case so interesting. Star Trek Online features a “Zombie” dance emote which obviously comes from Michael Jackson’s iconic Thriller dance routine. There’s also an “Unusual” dance emote that is suspiciously similar to the “Carlton Dance”. They’ve been there for a while and naturally haven’t garnered any attention as the MMO doesn’t have an audience comparable to that of Fortnite. But if these were to be removed from the game along with all the emotes in LOTRO, ESO and every other multiplayer title, then it would diminish the enjoyment of the games for a substantial group of players. It may not be a deal breaker for all, but the loss of emotes may well be an impediment for role-players. It would also mean a loss of revenue as so many emotes are granted via lootboxes.
If, for the sake of argument, emotes did become intellectual property and protected by copyright, then naturally some developers would remove them from their games to avoid paying potential licensing costs. Could such a situation lead to wider pop culture references becoming similarly subject to copyright law and eliminated from current products? Such a situation would certainly prove a headache for the likes of Blizzard and their flagship MMORPG World of Warcraft. We live in an age of increasingly bold business practices and a prevailing ethos of “if it can be monetised then do it”. Hence artists will look to all aspects of their work as a source of revenue, be it a dance unique to them, a catchphrase or even a style or aesthetic. And naturally video games as a “live service” want to include such things as emotes and cosmetic skins in their products. But although all parties like the idea of making financial charges, no one like to be on the receiving end of them. Ultimately, this all becomes a very difficult circle to square. I suspect that the Ribeiro case is not the last we shall here about this matter.