Left Shark Bites Back: 3D Printer Sculptor Hires Lawyer To Respond To Katy Perry's Bogus Takedown
from the jumping-the-shark dept
Did you think Katy Perry's lawyers sending a questionable cease & desist letter over 3d printable plans for "the left shark" backup dancer in Katy Perry's Superbowl Halftime routine would be the end of that story? It turns out that the guy who originally created the 3d printed figurine, Fernando Sosa, has now gone out and retained law professor/lawyer Chris Sprigman (the same Chris Sprigman we quoted in our original article detailing why a costume is a "useful article" and thus not copyrightable) to send a response to Perry's lawyers explaining copyright 101 to them.Mr. Sosa is not especially eager to be fighting over copyright, but the legal merits of your claim seem very weak. (We also wonder what Katy Perry could possibly stand to gain from declaring war on an Internet meme, but that's her business.) Mr. Sosa has a few questions that he wants answered before he will remove Left Shark from the other online stores in which it is available.Sprigman also ends his letter with some quite sane advice: perhaps Katy Perry's lawyers should just drop this:
First, can you tell me why you believe the costume of a shark that you claim Katy Perry owns is copyrightable? As you likely know, federal courts and the United States Copyright Office have made clear that costumes are generally not copyrightable. Please tell me why you think the Left Shark costume should be treated differently.
Second, what is the basis for your claim that Katy Perry, and not some other person, owns the copyright? Did Katy Perry design the Left Shark costume? If so, when? If not, who did? Did that person transfer any copyright interest he or she might have (in reality, very likely none) to Katy Perry? If so, when?
We ask about ownership not least because Katy Perry herself suggested that she didn't have control over the content of her halftime show, but rather the NFL did. See, for example, her recent interview with Ell magazine:"In my show, I am boss daddy. I am bossy mommy. They call me Boss. Everything goes through my eyes; I call all the shots, 100 percent of it. With the NFL, I have to be accountable to several levels of red tape. There are many committees I have to go through for my costumes, the budgets of my show, every interview--everything, I have to report to somebody. So I am no longer the boss; I have to relinquish that control."At the very least, Katy Perry's own account raises questions about what, if anything, she owns. If she wasn't the boss of her halftime show, she's also unlikely to be the copyright owner.
I'll end my letter with a simple request: Just drop this thing. My client wants to get back to his business, and he (and I'd wager pretty much everyone else) would be grateful if you'd just back off. Going ahead with these very dubious copyright claims will not benefit Katy Perry. But if you're determined to press on, please do respond to my legal questions, and we can try to work it out from there.This may be some of the best advice given to opposing lawyers. Now the question is whether or not Perry's lawyers will take it.
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Filed Under: 3d printing, chris sprigman, copyright, costumes, fernando sosa, katy perry, left shark, useful articles
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I have been wondering...
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What we really need
I know which way I'd place my money.
Also: with regard to the legality of placing bets: Most states have a provision making "wagers between gentlemen" explicitly legal.
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Leave it to the lawyers
Put that same person in front of a bloodsucking lawyer and this kind of thing happens. This lawyer doesn't care about your reputation--he cares about how many hours he can bill.
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Re: Leave it to the lawyers
So, you're saying that Katy Perry has no chance...
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oh, those lawyers!
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In the case of Star War's hyper-litigated stormtrooper outfits, US courts ruled that George Lucas owns the design, but UK courts ruled in favor of costume designer Andrew Ainsworth.
Although staking a claim on a rather generic-looking shark costume might be a somewhat bigger stretch, anyone making unauthorized reproductions, facsimiles, or derivatives of just about anything can expect to get hit with a lawsuit -- or worse. It seems that authorities are constantly making arrests and seizing shipments of so-called "counterfeit" toys (some of which only vaguely resemble the presumed original) - which would suggest that mere resemblance (even when coincidental) is a crime in and of itself.
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Actually there is doubt. Because as explained, costumes don't get copyright protection.
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This is a gross oversimplification of the law. What about separability? I know, you complain that I'm too dependent on "authority" when discussing the parts of the law you choose to ignore. I don't expect a substantive response, don't worry.
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Sorry, I didn’t have time to explain further yesterday.
The Copyright Act provides: 17 U.S.C. § 101.
It further provides: Ibid.
The test, derived from the statutes, is separability. A useful article, taken as a whole, is not copyrightable. That’s the realm of patents, aka, the useful arts. Nevertheless, parts of useful articles can be copyrighted, but only if they can be physically or conceptually separated from the useful articles. For example, a chair is a useful article. To the extent it functions as a chair, it can’t be copyrighted. But an ornamental design on the back of the chair can be copyrighted, as it is conceptually, if not physically, separable from the utility of the chair.
So is the shark design separable from shark costume’s utilitarian function? That’s the test. It’s wrong to just say costumes can’t be copyrighted. You have to do a separability analysis. That was my point. To do that, you’d have to turn to the case law and reason by analogy.
For example, you could look at this case, where the district court held that particular slippers shaped like bear claws were copyrightable because the design was conceptually separable from the utilitarian slipper: Animal Fair, Inc. v. AMFESCO Indus., Inc., 620 F. Supp. 175, 187-88 (D. Minn. 1985) aff'd sub nom. Animal Fair v. Amfesco Indus., 794 F.2d 678 (8th Cir. 1986).
Reasoning by analogy, the shark costume is utilitarian in that it is a costume. That is its function. No one can copyright the functionality of any costume. But separable from the utility of the shark costume is its design. It contains many “sculptural features which comprise the artistic design and which are wholly unrelated to function,” just like the bear claw slippers. So it's copyrightable, just like the slippers.
There's other cases that cut this same way, and there’s cases that cut the other way. But my point is that it’s not as simple as costume = not copyrightable, as Mike claimed.
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Are there any cases about costumes specifically, so that we don't have to reason by analogy?
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The only one I remember off the top of my head is this one, which involved halloween costumes: Chosun Int'l, Inc. v. Chrisha Creations, Ltd., 413 F.3d 324, 329-30 (2d Cir. 2005).
That's not particularly helpful, since the posture was a motion to dismiss. All the court says is that a costume could potentially be copyrighted. I'm sure there are other cases, but I'd have to do some research. If I have time later, I'll see what I can find.
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First off, I have to say that your attack on Mike is a bit unjustified. All Mike said was "Yes, there is doubt concerning this, because in most cases costumes are not copyrightable." He never said it was simple or resolved, you did.
Secondly, I have to agree that certain design features of costumes (which are not utilitarian) can be copyrightable.
Also, courts have stated that if the whole purpose of the costume is to portray a protected character then they are not "useful articles":
See Chosun Intern., Inc. v. Chrisha Creations, Ltd. 413 F. 3d 324 (2nd Cir. 2005)
which references
Hart v. Dan Chase Taxidermy Supply Co., 86 F.3d 320, 323 (2d Cir.1996)
and
Superior Form Builders v. Dan Chase Taxidermy Supply Co., 74 F.3d 488, 494 (4th Cir.1996)
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"This stuff isn't black and white."
In the end, you're just saying exactly what the article said about this in the first place... so what was your criticism of it?
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I was paraphrasing. It's my interpretation. I use italics when actually quoting someone.
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But good for you for trying.
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No, not really. I've had plenty of discussions with AJ/antidirt where I've learned quite a bit. Not a waste of time at all.
There is a POV here that must be maintained and no amount of logic or reasoned application of the law will make it through the filter.
Now you are just being rude. Well, thought out arguments are always welcome here, even if it opposes the majority view.
Hey, it gets them their clicks, but that dripping sound they don't want to hear about is the loss of credibility. Ah well.
Not even sure what that means. You realize that for the most part the Techdirt blog is a loss-leader for the rest of Mike's business, don't' you. From what I've gleaned over the years, the ads here barely pay for all the bandwidth used. Page clicks are not what Techdirt coverts and Techdirt's reputation is worth more then pageviews could ever provide.
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Honestly, I had no idea what Mike's did elsewhere until your comment, but I appreciate TD and the efforts of the folks here. My concern remains how certain aspects of IP get glossed over, misinterpreted, or just down mistreated, and by some writers here more than others. Even if the writer doesn't agree with the various aspects of trademarks or IP and the related law, they should be part of the discussion, and when that's absent it seems like the writer doesn't completely understand the subject.
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What about it? Seriously, I don't know what that is and you've provided nothing to educate those of us who don't. Your criticism is completely useless.
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Now whether or not this matter is one that counsels strongly in making this a legal issue between the parties is something else altogether.
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Neither did anyone expect a coherent argument from you. Thanks' for not dissapointing everyone.
*clicks report for you being a jackass again*
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"...discussing the parts of the law you choose to ignore. I don't expect a substantive response, don't worry."
you see, 2/3's of your 'retort' is based on logical fallacies.
Keep at it. If you have a point, use words to explain the logic behind you point. Try to prove your point; using negative statements about those with a different perspective is not considered logically sound in an argument.
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When the case went to the Supreme Court, they ruled against Lucas, not in favor of him. He made a novel argument about why copyright should apply to the outfits, even though clothing specifically does not have copyright protection: he claimed that the costume was actually a sculpture.
So, that case is not really comparable to this one, except in one aspect: they both were misapplying copyright law. Just in different ways.
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Most intellectual property lawsuits seem to be settled this way, based on pocket depth rather than merit.
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Landshark, Good Night and Have a Pleasant Tomorrow
First time I saw a (left)shark was on SNL - perhaps Lorne Micheals is the real owner of this copyright and maybe Chevy Chase who featured in those episodes might have something to say ... as he was the Landshark... but they stole that bit from Monty Python who did it in 1969 and I didn't see the Python crew suing.
This is too bad for Ms Perry, her lawyers aren't representing her image well here.
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Genius
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If not, they'll probably do some more sturm & drang before they let it go.
It's not so much that you be proven right as it is you not be proven conclusively wrong when it comes to attorneys.
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That seemed like a one, or two finger salute, because on the Internet trying to take the design files down is a game of whack-a-mole, that will cost the copyright claimant a lot of billable hours for little effect.
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One of these days...
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Re: One of these days...
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Hanna-Barbera should sue Katty Perry
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If copyright applies, doesn't the original Left Shark infringe too?
I'm no expert in intellectual property law, but doesn't a copyrightable thing need to be sufficiently distinguishable from prior art, as with patents? For example, a poor reproduction of a painting under copyright is still infringement, isn't it? Why would it be any different for a prop, especially when the prop is clearly designed to look generic?
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(Fortunately, the dancer doesn't seem to be a douche and is taking this ribbing rather good-naturedly.)
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Based on her own statements about how little artistic control she had concerning the halftime show, I'm thinking that Perry's whole performance was a work-for-hire and the rights (if any) would belong to the NFL.
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I suspect the Perry-NFL contracts are quite complicated – no simple 'work-for-hire' or 'pay-to-play' either way – but still probably expertly clear about who retains rights in all elements of the performance. I'd also bet the sharks appear in Perry's North American tour, starting this summer. (I suppose it's even possible they've appeared in some form in her current world tour, even before the Superbowl. If this dispute lingers we may find out.)
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That fact makes Sprigman's request to show ownership even more compelling, though.
As for the copyrightablility of the costume, that's a pretty grey area legally and courts have gone either way on it, so who knows.
The one thing that I wonder about though, is that previous cases seemed to involve costumes of things that were already under copyright, like characters from a movie or a book that were previously affixed to a tangible medium. If this a new costume design for a live show, is it copyrightable?
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They were only working from a costume as a model... because they'd observed it in a copyrighted concert/dance telecast featuring the character. The interest in "left shark" has not been strictly costume-focused, but more character-centric: the personality conveyed by its look and dancing.
If by outside chance the official direction to the dancer – a veteran of Perry's tours, apparently – was to be "adorably clumsy and out of sync", that would strengthen the case it's a creatively-authored character, wouldn't it?
If it's a new character for the Prismatic tour, it almost certainly existed in concept art before realized costume. Does revealing a distinctive character-look in costume inherently abandon all rights to it, whereas a single published comic/drawing beforehand would've protected it? That wouldn't make much sense...
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So it's transformative and doesn't compete with the original. Sounds like a strong fair use defense if it gets that far.
If by outside chance the official direction to the dancer – a veteran of Perry's tours, apparently – was to be "adorably clumsy and out of sync", that would strengthen the case it's a creatively-authored character, wouldn't it?
Perhaps, but that would only apply to the performance, not the costume, and certainly not the figurine.
Does revealing a distinctive character-look in costume inherently abandon all rights to it, whereas a single published comic/drawing beforehand would've protected it? That wouldn't make much sense...
I doubt a drawing would make or break it. It seems either the costume is copyrightable or it isn't, regardless of the design process.
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The lawyer parasite will do what ever makes it the most money.
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I'm with Perry's team on this
It's possible they've appeared in earlier Perry concerts, and it may even be part of the creative-direction that one is sloppy/goofy.
I'd be interested to learn the exact web of contractual relationships between Perry, her stage-show designers, the NFL, and others. But the idea that *someone* has rights to these characters seems no more radical to me than the idea that some entity has the exclusive right to license Spider-Man dolls and costumes.
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Re: I'm with Perry's team on this
However, those sharks are almost identical to many that have appeared in various media for decades (at least since I was a child). If they pursue this line of reasoning, I wonder if there's a risk they will be subject to a copyright-based lawsuit from any of those?
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But if "almost identical", it should be easy to find earlier images of cartoonish/costumish sharks with similar proportions, eyes, coloring. Will those turn up? I don't know; there's lots of room to make distinctive personality-indicating variations in stylized animals.
At the moment, a Google Image search for [costume shark] turns up hundreds of variants... but not a single one could be confused with the Left Shark. (A search for [disney shark costume], to see if perhaps some professional-grade theme-park costume is similar, also comes up with nothing confusable in look until row 17, after about 150 other variants, where a makezine image of the disputed figurine appears.)
And in this case, the commercial offering wasn't promoted as a "classic American costume-shark" or "anime-inspired cute shark". It was, "Left Shark".
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"And in this case, the commercial offering wasn't promoted as a "classic American costume-shark" or "anime-inspired cute shark". It was, "Left Shark"."
Irrelevant. "Left Shark" is not a trademarked term, as far as I know.
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Re: Re: Re: Re: I'm with Perry's team on this
Doesn't matter if 'Left Shark' is a trademarked term – that's not the case. Rather, everyone knows it designates one of the Perry Concert Sharks, so it establishes the origin of the interest and commercial value for the knockoff replica.
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Re: Re: Re: Re: Re: I'm with Perry's team on this
This relates to what I was trying to convey further up thread. The characters you mention were protected by copyright prior to costumes of the characters being made.
Neither of those examples were given a copyright based only on the costume design, which is what you seem to be advocating for Left Shark. They were given copyright protection because their likenesses were affixed to a tangible medium other than the costume itself.
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Re: Re: Re: Re: Re: Re: I'm with Perry's team on this
The original cease & desist says "intellectual property depicted or embodied in connection with the shark images and costumes portrayed and used in Katy Perry's Super Bowl 2015 half-time performance". Images, not just costumes. And as a reflection of underlying IP, not necessarily the IP itself.
Most of the public discussion is of the *look* and *personality* of the shark *character*, which appeared in a televised concert performance. (While many may want a "left shark costume", a lot more cultural significance has been associated with "left shark" as a character.) A costume is just one incarnation, as is a figurine, or a doll, or an animated-cartoon.
And how did the replica-figurine-seller even know what Left Shark looked like? He did not have direct access to any costumes. He didn't implement the generic idea of "man-wearable shark costume". He didn't market it as "figurine of man in shark costume".
He worked from a fixed, tangible medium – an entertainment telecast concert performance – which is undoubtedly both copyrightable and copyrighted. He made a version that's instantly recognizable as one of the Perry Concert Sharks.
Additionally, in the process of designing the show, surely a series of fixed-medium scripts and concept drawings existed first, and guided the creation of the costumes and the performance choices of the actors/dancers.
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Re: Re: Re: Re: Re: Re: Re: I'm with Perry's team on this
Ok. That's fine. What I am arguing is that the costume aspect is tantamount it being a reasonable copyright claim in the first place. It's not an obsession at all, it's the gist of my argument.
The original cease & desist says "intellectual property depicted or embodied in connection with the shark images and costumes portrayed and used in Katy Perry's Super Bowl 2015 half-time performance". Images, not just costumes. And as a reflection of underlying IP, not necessarily the IP itself.
Personally I never saw any "images" of sharks aside from the dancer's costumes, but it's possible I missed them when I watched it live. But, if it turns out that the costumes are the only portrayal of sharks at the time it was broadcast (ie: fixed to tangible medium) and the costumes aren't copyrightable, no infringement occurred.
And how did the replica-figurine-seller even know what Left Shark looked like? He did not have direct access to any costumes. He didn't implement the generic idea of "man-wearable shark costume". He didn't market it as "figurine of man in shark costume".
He worked from a fixed, tangible medium – an entertainment telecast concert performance – which is undoubtedly both copyrightable and copyrighted. He made a version that's instantly recognizable as one of the Perry Concert Sharks.
I don't disagree that the figurine was probably copied from the broadcast, since it's doubtful that the 3d designer actually attended the Superbowl. But if the costumes are not protected by copyright that really doesn't matter because no infringement occurred in the first place.
Additionally, in the process of designing the show, surely a series of fixed-medium scripts and concept drawings existed first, and guided the creation of the costumes and the performance choices of the actors/dancers.
To be honest, I'm not sure how that actually helps. How can copyright infringement occur on something that was never seen be the infringer? The supposed infringement occurred from the live broadcast, not the concept drawings or production notes or whatever.
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Your reasoning would seem to suggest that someone who'd only ever seen people in Spider-Man costumes (including in copyrighted movies and TV shows), would be allowed to replicate that look in any format, because "costumes are not protected", and the replicator (a bit like an engineer doing a clean-room reimplementation) has only seen the costumes.
Good luck with that interpretation! Copyright is acquired by creative effort and fixation in a medium, and not waived by happenstance of particular-revelation-to-others. And by legal precedents cited in sibling threads, even the story on *costumes* is more complicated than simply "not protected" – creative design elements other than the utilitarian function are protectable. The mere fact that a figurine is instantly recognizable by shape and coloring as "Left Shark" kind of proves there are character design elements separable from the costume, doesn't it?
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In an ironic turn of events, Perry's team have applied for a trademark on Left Shark - using a image of a 3d printed Left Shark, probably lifted from Sosa's website.
You couldn't write an Onion article this funny!
http://politicalsculptor.blogspot.com/2015/02/katy-perry-law-firm-responds-and-so.html#FreeLef tShark
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Re: I'm with Perry's team on this
You mean the distinctive, recognizable look of cartoon and toy sharks that've been around in numerous similar forms for decades? What rock have you been hiding under to think this shark design is something new and amazing?
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Costumes, IP and ownership rights
If the image (regardless 2-D or 3-D) of the "Left Shark" is not copywrite-able, then why have images (2D or 3D) of Mickey Mouse been protected as being owned by Disney for the past 75 years?
Why should holloween costumes of Left Shark made by anonymous third-parties in China and India next October be any different (from a legal / rights POV) be any different than Mickey Mouse costumes made by the same anonymous people. People who are ultimately trying to extract financial value by making / selling the costumes?
I'm just trying to understand why some cartoon creations enjoy copyright benefits while others don't.
I'm trying to understand why, if costumes can't enjoy copyright protection, then does that mean anyone could make and sell costumes of any fictional / cartoon character for parties, holloween, etc? (Superman, Spongebob, Mickey Mouse, etc)?
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Re: Costumes, IP and ownership rights
What does the music have to do with Left Shark?
If the image (regardless 2-D or 3-D) of the "Left Shark" is not copywrite-able, then why have images (2D or 3D) of Mickey Mouse been protected as being owned by Disney for the past 75 years?
If Left Shark were a costume based on a movie character that would be the same situation, but it's not.
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