There's Something Fishy With Katy Perry's Left Shark 3D Printing Takedown

from the you-can't-copyright-that dept

Fri, Feb 6th 2015 10:35am — Mike Masnick

I spent this past Sunday spending time with my family and some friends not watching the Super Bowl, so I missed all the commercials and the exciting finish to the game... and the half-time show and the wonder that is the left shark. Still, I heard plenty about it on the internet because apparently the people I follow on Twitter couldn't get enough of the whole shark thing. If you were lucky enough to avoid it entirely, apparently Perry had some shark dancers, and the one on the left appeared to be somewhat... less coordinated than the right one (though Perry's team now claims that the choreography went off exactly as planned).

Either way, the left shark has become a thing. And, so, of course, someone had to go make a 3D printable version of it -- and uploaded plans to Shapeways. Well, until Perry's lawyers stepped in and said nuh uh. Her big time lawyers are claiming that the plans violate Perry's copyright and demanded that Shapeways cease and desist, and provide a "full accounting" of any money they made from it.

Our client recently has learned that you have been involved in the manufacture, sale, marketing and distribution of merchandise featuring a shark sculpture which embodies and uses the IP, and that you have displayed this product on your website, www.shapeways.com, in connection with such sale and distribution.

As you are undoubtedly aware, our client never consented to your use of its copyrighted work and IP, nor did our client consent to the sale of the infringing product. Your unauthorized display and sale of this product infringes our client's exclusive rights in numerous ways, including, but not limited to, infringement of our client's exclusive rights to reproduce, display, and distribute its copyrighted images under the United States Copyright Act as set forth in 17 U.S.C. §106.

Your infringing conduct entitles our client to significant legal relief against you, which may include actual damages, statutory damages, and punitive damages, as well as immediate and permanent injunctive relief.

Shapeways has apparently consented, but it's worth noting that almost all of the above is a bunch of hogwash. As law profess Chris Sprigman pointed out, a shark costume is almost certainly a "useful article" and thus, is not subject to copyright protection:

For purposes of copyright registration, fanciful costumes will be treated as useful articles. Costumes serve a dual purpose of clothing the body and portraying their appearance. Since clothing the body serves as a useful function, costumes fall within the literal defdtion of useful article. In addition. the case law consistently treats I costumes as useful articles, and a Copyright Office decision to differ substantially from these court decisions would appear difficult to justify.

But, for now the files have been taken down, because, really is it worth a lawsuit over the left shark?

We've been pointing out for years that there are going to be a number of intellectual property questions raised by 3D printing. And while this one isn't particularly deep in terms of raising new issues of law, considering it some bizarre foreshadowing of legal disputes to come.

254849521 Left Shark Cease and Desist (PDF)254849521 Left Shark Cease and Desist (Text)

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Filed Under: 3d printing, cease & desist, copyright, katy perry, left shark, takedowns, useful articles
Companies: shapeways

32 Comments

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Ninja (profile), 6 Feb 2015 @ 8:43am

Katy Perry LAWYERS Claim Copyright Over Left Shark

I doubt she would do it if not assisted by the vultures. Most likely she'd find it funny and shake it off. Just like the left shark seemed blissfully ignorant of the choreography.

It is clear that this is just some money grabbing attempt. Had the sharks gone unnoticed nobody would be claiming a thing over some 'extras performance'.
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jackn, 6 Feb 2015 @ 10:42am

Man am I out of the loop on this. I don't following bowling nor do I care for 'eye' music. But this is still pretty hilarious.

I wonder if they actually filed the copyright. What kind would one use for a costume?
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Anonymous Coward, 6 Feb 2015 @ 10:50am

I wonder if Ms. Perry is aware that her lawyer is calling her an 'it'?

And as always, it's just too damn bad copyright assertions are always sung to the tune of "Who's Got The Most Money?"
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Anonymous Coward, 6 Feb 2015 @ 11:09am

Once again the risks of an expensive lawsuit, regardless of the fact that Shapeways would likely win, allows a maximalist to get their way.
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Anonymous Coward, 6 Feb 2015 @ 11:15am

But...but...but it was Snoop Dogg/Lion that was in the Shark Outfit.
His lawyers should go sue Katy's lawyers.
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Anonymous Coward, 6 Feb 2015 @ 11:20am

???
yep... i am about as lost as I can get.

So someone flubs their dance routine (intentional or not) and its now a internet sensation? Complete with cut throat lawyers and Patent/Trademark/Copyright infringement?

Humanity has such promise ahead of it!
Did I miss something?
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Nastybutler77 (profile), 6 Feb 2015 @ 11:25am

"Since clothing the body serves as a useful function, costumes fall within the literal defdtion of useful article."

Dafuq is "defdtion"?
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DogBreath, 6 Feb 2015 @ 11:26am

I heard there was a label on the costume...
For those that had the UUUHD (Ultra-Ultra-Ultra High Definition) 100K X-Ray TVs, they claim to have seen the label on the in inside of Left Shark Costume (in all known and a few unknown languages) stating the following:

"The physical reproduction by any means known or yet to be invented (including recasting and/or reverse engineering or 3D scanning/printing) of the Left Shark Costume or any of it's parts is expressly prohibited under U.S. and International copyright and product protection laws."

Hey, it worked for Eugene Roddenberry.
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wereisjessicahyde (profile), 6 Feb 2015 @ 11:35am

The model designer Fernando Sosa complied with the Shapeways cease and desist and is no longer selling it but he then uploaded the model file to Thingiverse available to download for free. Good for him.

http://www.thingiverse.com/thing:667127
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jameshogg (profile), 6 Feb 2015 @ 11:37am

Until I hear somebody say "I was physically unable to pirate thing X on the internet", I will never believe piracy will go away.
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orbitalinsertion (profile), 6 Feb 2015 @ 11:43am

Yes, thank you for bringing to me this news, of which I was previously unaware, of this latest infestation of landsharks.
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Baron von Robber, 6 Feb 2015 @ 12:00pm

Re:
Uh...........Candygram.
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Andrew F (profile), 6 Feb 2015 @ 12:29pm

Lawyers ...
http://andrewfong.com/blog/wp-content/uploads/2015/02/sharks1.png
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John Fenderson (profile), 6 Feb 2015 @ 12:57pm

I don't see it
Since I've been too busy over the last few weeks to keep up on my memes, I was completely unaware of this shark thing until I read this. I watched a video clip of the performance in action, and I don't really see any appreciable difference in the quality of dancing between the two sharks. So I have a question: which one is the "left" one? Is it my left or stage left?
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Anonymous Coward, 6 Feb 2015 @ 12:57pm

The directions to make a thing are not the thing.

A recipe is not a cake.
A crypto algorithm is not a movie.
Instructions to make a 3D sculpture are not the sculpture.
Nor is a sculpture a costume. Unless, of course, it is...

The original sharks were not statues, so statue-infringment isn't happening here. Trademark issues are possible, except for the lack of trademark registration. Copyright? Not so much.
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Anonymous Coward, 6 Feb 2015 @ 1:10pm

Surely somewhere sometime someone has danced badly while wearing a shark costume. Fancy dress parties, New Year's Eve, parades, ..... So we wait for that person to appear, with video, and sue the living daylights out of these shameless imitators.
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John Fenderson (profile), 6 Feb 2015 @ 1:17pm

Re:
When I saw a picture of the sharks in question, my very first thought was that they were a ripoff of the Jaws 19 shark in Back To The Future II. Maybe Amblin or Universal should sue Katy Perry?
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Max, 6 Feb 2015 @ 2:10pm

Re:
Sorry Ninja - You can't say "sha$% it @ff" - Taylor Swift owns the rights to that phrase. Expect a takedown notice from her people soon.
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elporko, 6 Feb 2015 @ 2:43pm

Don't you people understand! Katy Perry will starve otherwise.
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DCL, 6 Feb 2015 @ 3:20pm

Heeeeey...
Katy Perry's lawyers have jumped the shark!

...too soon..??
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DB (profile), 6 Feb 2015 @ 3:20pm

The first that the notice is blustering is in the opening line. When someone say "IP" rather than specifying if a specific copyright, trademark or patent is being infringed, they are probably talking about 'artist rights'. Those are rights not identified in law or precedent, but rather by really, really wishing "there ought to be a law".
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Anonymous Coward, 6 Feb 2015 @ 8:30pm

someone really should just copyright the alphabet and make a point of the silliness of how things currently are
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PRMan, 6 Feb 2015 @ 8:49pm

Re: ???
"Did I miss something?"

http://www.imdb.com/title/tt0387808/?ref_=nv_sr_1
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got_runs? (profile), 6 Feb 2015 @ 11:48pm

>_
Perry's lawyers are planning to patent thick legs now.
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Anonymous Coward, 7 Feb 2015 @ 1:39am

"For purposes of copyright registration, fanciful costumes will be treated as useful articles. Costumes serve a dual purpose of clothing the body and portraying their appearance. Since clothing the body serves as a useful function, costumes fall within the literal defdtion of useful article."

But what about all those lawsuits wielded against people who sold -- or wore professionally -- a white, sequin-studded jumpsuit without paying the estate of a certain dead celebrity?

http://www.outdoorhub.com/news/2014/04/17/elvis-estate-sues-beretta-ad-campaign-featuring-king/
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wereisjessicahyde (profile), 7 Feb 2015 @ 2:16am

Re: Re:
I tried to "shake it off" to both Perry and Swift, it just wasn't working for me. Perhaps we need a Left Shark, Perry, Swift threesome
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wereisjessicahyde (profile), 7 Feb 2015 @ 2:20am

Re: I don't see it
Your left mate. Come on, Left Shark is a legend. The "other" shark, the guy that actually did the dancing right is a loser. Kinda fucked up situation.
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Mark D., 7 Feb 2015 @ 4:53pm

A fun mess
Yes, funny that the letter refers to Katy Perry as an 'It'. I'd wager that is not a correct party identification, as there is undoubtedly one or more limited liability entities that she does business under.

I'd also be interested in whether the actual costume designer actually executed any form of assignment (of whatever rights) and in favor of whom?

Finally, since the model creator was unlikely present in person, there is always this: "This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.”

I'd file the dec action pro bono against It Perry & this GT Bozo...uhoh maybe they also represent Bozo...
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Anonymous Coward, 7 Feb 2015 @ 7:01pm

Re:
I wonder if somebody has tried?

However, if Mozart were still alive today, I'm sure his lawyers would be all over the melody of Twinkle Twinkle Little Star and the Alphabet song...
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Titan, 5 Mar 2015 @ 9:42pm

The way of living: displayed by the left shark
I normally do not watch the super bowl but ended up watching it and I was surprised how badly the costumes and choreography for the KP show was. I thought the tiger was ridicules and enjoyed watching the left shark. That would have totally been me. I still think that dancer lost a bet to a friend and that friend did not have enough time to learn the steps...

Taking the left shark off shapeways was strange. The left shark would have never been popular or was supposed to be a popular act in the show. If any, it would have helped KP to get more left shark promotion.
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Jack, 21 Aug 2015 @ 11:33pm

Re:
Only Taylor Swift is allowed to shake it off
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Kanger, 15 Feb 2016 @ 2:54pm

Left Sharks Instagram Account
Did anybody else see the news report from the left shark Instagram account this year during the Superbowl?

Its true, there is just no bad publicity....
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