Left Shark Bites Back: 3D Printer Sculptor Hires Lawyer To Respond To Katy Perry's Bogus Takedown

from the jumping-the-shark dept

Mon, Feb 9th 2015 12:27pm — Mike Masnick

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.

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.

Sprigman also ends his letter with some quite sane advice: perhaps Katy Perry's lawyers should just drop this:

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

75 Comments

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Anonymous Anonymous Coward, 9 Feb 2015 @ 12:42pm

I have been wondering...
...what happened to the Right shark?
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Applesauce, 9 Feb 2015 @ 12:48pm

What we really need
What we really need is a central clearinghouse where we can place bets on whether or not some lawyer (or government agency, while we're at it) will suddenly acquire some level of common sense and/or decency after doing something stupid like this.

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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Gwiz (profile), 9 Feb 2015 @ 12:57pm

I'm pretty sure I heard Brian Williams say that he was the Left Shark.
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KRA, 9 Feb 2015 @ 12:58pm

Leave it to the lawyers
A minimally intelligent person can spent 10 minutes online and zero dollars and conclude that a legal threat like this will damage her reputation.

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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Anonymous Coward, 9 Feb 2015 @ 1:13pm

Re: I have been wondering...
By the end of the show, only one shark was Left...
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mcinsand, 9 Feb 2015 @ 1:15pm

oh, those lawyers!
Maybe they've finally jumped the shark on this one.
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Anonymous Coward, 9 Feb 2015 @ 1:17pm

There's little doubt that someone must own the intellectual property of the shark costume. But who?

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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Anonymous Coward, 9 Feb 2015 @ 1:21pm

Re: I have been wondering...
The beachball claimed another victim.
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Mike Masnick (profile), 9 Feb 2015 @ 1:23pm

Re:
There's little doubt that someone must own the intellectual property of the shark costume. But who?

Actually there is doubt. Because as explained, costumes don't get copyright protection.
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Anonymous Coward, 9 Feb 2015 @ 1:31pm

Re: What we really need
Ah; but as soon as you include the word "online" most states have a prohibition instead of a provision. Maybe they should try for a patent....
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Anonymous Coward, 9 Feb 2015 @ 1:37pm

Mr. Sprigman's good advice to Just Drop This Thing might be a little too folksy for Mr. Los Angeles. I'm betting that dog's going to have to get a couple more swats across the nose with The Newspaper Of Common Sense before he backs down.
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Matthew (profile), 9 Feb 2015 @ 1:39pm

Re: I have been wondering...
There is no right shark, there is only left shark and wrong shark.
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DCL, 9 Feb 2015 @ 1:41pm

Re: Re: I have been wondering...
Two Sharks enter... one sharks leaves... those are the rules of SUPER BOWL HALFTIME SHOW!
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PW091, 9 Feb 2015 @ 1:41pm

Landshark, Good Night and Have a Pleasant Tomorrow
Someone needs to encode the Saturday Night Live Landshark skit from the 1975 for the Internet MEME of this.

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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Anonymous Coward, 9 Feb 2015 @ 1:48pm

Genius
Left fin slap to the face!
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Votre (profile), 9 Feb 2015 @ 1:49pm

I'll bet Ms. Perry's lawyer is frantically searching for some venue that they hope will be sympathetic, and where a judge will try to legislate from the bench on their behalf rather than just back down right away.

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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John Fenderson (profile), 9 Feb 2015 @ 1:53pm

Re:
"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"

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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Anonymous Coward, 9 Feb 2015 @ 2:25pm

I think the design should be freely available for anyone to print. Though originally the Left Shark wasn't just design plans. Printed figures were offered for sale. The design wasn't released to the public until after the C&D.
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John Nemesh, 9 Feb 2015 @ 2:26pm

Re: I have been wondering...
I see a new meme coming out! "Dejected Right Shark" Someone get on this!
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Anonymous Coward, 9 Feb 2015 @ 2:33pm

One of these days...
...I'd like the celebrity in question (Katy Perry in this case) to publicly ask their name NOT be dragged into such matters. Let it be known that if these lawyers want to pursue such trivial matters then they can put their own names to them and leave the celebrities out of it.
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Anonymous Coward, 9 Feb 2015 @ 2:39pm

Re:
The design wasn't released to the public until after the C&D.

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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antidirt (profile), 9 Feb 2015 @ 2:40pm

Re: Re:
Actually there is doubt. Because as explained, costumes don't get copyright protection.

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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John Fenderson (profile), 9 Feb 2015 @ 3:08pm

Re: Re: Re:
Can you please provide an actual argument here? As I understand it -- and I am not an attorney, let alone a copyright attorney, so I may very well not be understanding correctly -- separability is the notion that a functional item may qualify for copyright despite being functional because the artistic aspect is considered separately from the utility aspect. I don't see how that relates to this particular case at all.
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PRMan, 9 Feb 2015 @ 3:09pm

Re: Leave it to the lawyers
"A minimally intelligent person"

So, you're saying that Katy Perry has no chance...
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Anonymous Coward, 9 Feb 2015 @ 3:21pm

it's not just Perry's lawyers but Perry herself. she seems to be such an obnoxious bitch who thinks she owns just about everything and what she doesn't own has the rights to. the world doesn't need any more ass holes, there's enough in the government and associated security forces!
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JMT (profile), 9 Feb 2015 @ 5:28pm

Re: Re: Re:
"What about separability?"

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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Anonymous Coward, 9 Feb 2015 @ 6:12pm

Re: Re: Re:
Because your response was the epitome of substantive, chicken boy?
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Anonymous Coward, 9 Feb 2015 @ 6:45pm

Re: Re: Re:
Are you capable of being any more dull? I am curious.
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Anonymous Coward, 9 Feb 2015 @ 7:59pm

Re:
East Texas, it's time to expand your repertoire.
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Anonymous Coward, 9 Feb 2015 @ 8:21pm

Re: Re:
The end result being that George Lucas won his stormtrooper costume copyright claim against Ainsworth in the US, barring Ainsworth from selling any more stormtrooper costumes in the US (as well as owing Lucas $20 million). Whether or not Lucas's (default) court judgement would have held up in the US Supreme Court (where it surely would have ended up) makes little difference if the defendant can't afford to fight the legal war and therefore loses by initial default or eventual attrition.

Most intellectual property lawsuits seem to be settled this way, based on pocket depth rather than merit.
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Anonymous Coward, 9 Feb 2015 @ 9:33pm

Re: Re: Re:
I fear Mr. Sprigman may be getting drunk on his own wine by overstating the law associated with otherwise useful articles. Long ago the Supreme Court recognized in Mazer v. Stein that under certain conditions aspects of useful articles could qualify for copyright protection. His tweets and interviews regarding this specific matter seem to me to place far too much emphasis on the word "costume", and virtually nothing about the concept associated with separability.

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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techflaws (profile), 9 Feb 2015 @ 9:54pm

Re: Re: Re:
I don't expect a substantive response

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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PaulT (profile), 10 Feb 2015 @ 4:09am

Re: One of these days...
Given that she's a major label artist, chances are that not only does she have nothing to do with these proceedings, but that one of the rights she's signed away is the one that would allow her to complain publicly even if she wants to.
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Anonymous Coward, 10 Feb 2015 @ 5:55am

Hanna-Barbera should sue Katty Perry
for clearly copying Jabberjaw's looks and style.
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Anonymous Coward, 10 Feb 2015 @ 6:56am

Re: Re: Re: Re:
You may wish to look at the second of the documents accompanying the first article here regarding this matter. It is a policy statement issued in 1991 by the then Registrar of Copyrghts, Ralph Oman. The statement explains the concept of seperabity, which is surely the reason the person you are criticizing did not elaborate in his comment to the author of thIs and the prior articles about separability.
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Jordan, 10 Feb 2015 @ 7:15am

If copyright applies, doesn't the original Left Shark infringe too?
If copyright comes into play, wouldn't the Left Shark costume be violating someone's prior copyright? Surely, generic-looking shark costumes have existed before 2015, and surely some of these were used at some point for dancing.

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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Anonymous Coward, 10 Feb 2015 @ 7:15am

I'm waiting for the attorney who litigated for Cindy Lee Garcia to contact the dancer who embodied Left Shark and telling him he could get bazillions because he "owns" the performance...

(Fortunately, the dancer doesn't seem to be a douche and is taking this ribbing rather good-naturedly.)
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jackn, 10 Feb 2015 @ 7:47am

Re: Re: Re:
Dont forget your bias too.

"...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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LAB (profile), 10 Feb 2015 @ 8:12am

What should really be determined is if Left Shark was a work-for-hire and if it was, Perry very well could own the rights. The argument against Left Shark's ability to be copyrighted because it is a costume seems pretty week. There are many characteristics of Left Shark that are different from other shark "costumes" that a case for its uniqueness could be established.
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antidirt (profile), 10 Feb 2015 @ 8:15am

Re: Re: Re: Re:
Can you please provide an actual argument here? As I understand it -- and I am not an attorney, let alone a copyright attorney, so I may very well not be understanding correctly -- separability is the notion that a functional item may qualify for copyright despite being functional because the artistic aspect is considered separately from the utility aspect. I don't see how that relates to this particular case at all.

Sorry, I didn’t have time to explain further yesterday.

The Copyright Act provides:
A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.
17 U.S.C. § 101.

It further provides:
[T]he design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
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:
The Court will assume for purposes of the present motion that plaintiff's slipper is a useful article within 17 U.S.C. § 101.17 Notwithstanding this assumption, defendant's characterization of the scope of copyright protection in this case is far too narrow. Virtually all of the design aspects of plaintiff's slipper “can be identified separately from, and ... exist ... independently of, the utilitarian aspects of the [slipper].” 17 U.S.C. § 101. It is clear that such features need not be physically separable from the useful article in order to be protectable; it is enough that they can be conceptually separated. Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993 (2d Cir.1980). In the present case, plaintiff's design features are conceptually separate from the utilitarian aspects of its slipper. Plaintiff correctly notes that one could draw a line drawing of the whole shape and design which would be recognizable as a fanciful artistic rendition of a bear's paw, regardless of what type of functional or utilitarian object it was used to adorn. See Ted Arnold Ltd. v. Silvercraft Co., 259 F.Supp. 733 (S.D.N.Y.1966) (pencil sharpener with exterior shape in form of antique telephone held protectable); Royalty Designs, Inc. v. Thrifticheck Service Corp., 204 F.Supp. 702 (S.D.N.Y.1962) (toy banks in shape of dogs held protectable). The impractical width and shape of the BEARFOOTTM sole, the artwork *188 on the sole, the particular combination of colors, the profile of the slipper, the stuffed aspect of the slipper, and the toes are all sculptural features which comprise the artistic design and which are wholly unrelated to function. The Court therefore finds that the entire exterior design of plaintiff's slipper is protectable under the Copyright Act.
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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Gwiz (profile), 10 Feb 2015 @ 8:27am

Re:
What should really be determined is if Left Shark was a work-for-hire and if it was, Perry very well could own the rights.

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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Reality bites, 10 Feb 2015 @ 8:39am

The lawyer parasite will do what ever makes it the most money.
The damage to the client is immaterial.
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nasch (profile), 10 Feb 2015 @ 8:39am

Re: Re: Re: Re: Re:
Reasoning by analogy, the shark costume is utilitarian in that it is a costume.

Are there any cases about costumes specifically, so that we don't have to reason by analogy?
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antidirt (profile), 10 Feb 2015 @ 8:57am

Re: Re: Re: Re: Re: Re:
Are there any cases about costumes specifically, so that we don't have to reason by analogy?

The only one I remember off the top of my head is this one, which involved halloween costumes:
Accordingly, design elements that can be “conceptualized as existing independently of their utilitarian function,” Carol Barnhart, 773 F.2d at 418, are eligible for copyright protection. And we have noted that, while design elements that “reflect a merger of aesthetic and functional considerations ... cannot be said to be conceptually separable from the utilitarian elements,” Brandir, 834 F.2d at 1145, “where design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences, conceptual separability exists.” Id. (emphasis added). See also id. at 1147 (clarifying that, when a design element is “influenced in significant measure by utilitarian concerns,” the design is not conceptually separable from the underlying article) (emphasis added). In all this we have not doubted that when a component of a useful article can actually be removed from the original item and separately sold, without adversely impacting the article's functionality, that physically separable design element may be copyrighted. Cf. Mazer, 347 U.S. at 218–19, 74 S.Ct. 460 (holding that the design of a dancer carved into the base of a lamp was protected by the Copyright Act, even though the design of the lamp itself was not protected).

6 Applying these tests to the case before us at the Rule 12(b)(6) stage—where a complaint will not be dismissed unless it is beyond peradventure that the plaintiff could prove no set of facts leading to success, see Conley, 355 U.S. at 45–46, 78 S.Ct. 99—we cannot say that Chosun's allegations of copyright infringement are insufficient. It is at least possible that elements of Chosun's plush sculpted animal costumes are separable from the overall design of the costume, and hence eligible for protection under the Copyright Act. It might, for example, be the case that the sculpted “heads” of these designs are physically separable from the overall costume, in that they could be removed from the costume without adversely impacting the wearer's ability to cover his or her body.3 Similarly, it could be that the *330 sculpted “heads” (and perhaps “hands”) are conceptually separable. That is, Chosun may be able to show that they invoke in the viewer a concept separate from that of the costume's “clothing” function, and that their addition to the costume was not motivated by a desire to enhance the costume's functionality qua clothing. It is, of course, possible that at any of several later stages Chosun will have failed, as a matter of law, to prove that such separability exists. But that possibility cannot justify dismissal of Chosun's complaint now on a Rule 12(b)(6) motion.
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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Gwiz (profile), 10 Feb 2015 @ 9:02am

Re: Re: Re: Re: Re:
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.

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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Drawoc Suomynona (profile), 10 Feb 2015 @ 9:03am

Re: Re: Re: Re: Re:
Your efforts to explain the law here are admirable, but it's a waste of time. There is a POV here that must be maintained and no ammount of logic or reasoned application of the law will make it through the filter. Hey, it gets them their clicks, but that dripping sound they don't want to hear about is the loss of credibility. Ah well.

But good for you for trying.
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Gwiz (profile), 10 Feb 2015 @ 9:24am

Re: Re: Re: Re: Re: Re:
Your efforts to explain the law here are admirable, but it's a waste of time.

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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Gwiz (profile), 10 Feb 2015 @ 9:29am

Re: Re: Re: Re: Re: Re: Re:
*coverts = covets
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nasch (profile), 10 Feb 2015 @ 9:36am

Re: Re: Re: Re: Re: Re: Re:
At first I was thinking that you could make a stuffed animal with the same design, but then this wording "when a component of a useful article can actually be removed from the original item and separately sold" makes me think the test is whether you could tear part of the costume off and just sell that. You could maybe sell the shark head, but if it ruins the costume to not have the head (which it would) that doesn't seem very separable. Unless I'm missing the point.
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antidirt (profile), 10 Feb 2015 @ 9:47am

Re: Re: Re: Re: Re: Re:
There's case law that cuts both ways. There's disagreement among the circuit courts about what the proper test for conceptual separability even is. The Nimmer treatise disagrees with the Patry treatise. This stuff isn't black and white. That's what lawyers are for! Here's a case where the judge discusses some of the different approaches, ultimately concluding that a tiger costume is copyrightable--though only thinly so. http://scholar.google.com/scholar_case?case=10535111870820633617
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John Fenderson (profile), 10 Feb 2015 @ 10:26am

Re: Re: Re: Re: Re: Re: Re:
Thanks for your explanations. I found them very, very interesting!

"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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Will, 10 Feb 2015 @ 10:38am

Re: Re:
Marina Toybina is the creator and designer of left (and right) shark.
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Anonymous Coward, 10 Feb 2015 @ 10:52am

Re: Re: Re: Re: Re: Re:
Is the statement in quotes an actual quotation or a personal interpretation of what the TD writer said?
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Gwiz (profile), 10 Feb 2015 @ 11:01am

Re: Re: Re: Re: Re: Re: Re:
Is the statement in quotes an actual quotation or a personal interpretation of what the TD writer said?

I was paraphrasing. It's my interpretation. I use italics when actually quoting someone.
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gojomo (profile), 10 Feb 2015 @ 11:40am

I'm with Perry's team on this
The sharks are not primarily costumes, but characters with a distinctive, recognizable look who appeared in a designed, televised, copyrighted performance.

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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gojomo (profile), 10 Feb 2015 @ 11:52am

Re: Re:
As of late last year, the NFL actually wanted to be paid *by* the halftime performer, but by January Katy Perry flatly denied paying anything. Still, who knows how, for example, the production costs were divvied up?

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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Gwiz (profile), 10 Feb 2015 @ 12:54pm

Re: Re: Re:
Yeah, I agree that the contracts involved with a Superbowl Halftime show probably killed more than a few trees.

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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John Fenderson (profile), 10 Feb 2015 @ 1:21pm

Re: I'm with Perry's team on this
"The sharks are not primarily costumes, but characters with a distinctive, recognizable look who appeared in a designed, televised, copyrighted performance"

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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JMT (profile), 10 Feb 2015 @ 3:36pm

Re: I'm with Perry's team on this
"The sharks are not primarily costumes, but characters with a distinctive, recognizable look..."

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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gojomo (profile), 10 Feb 2015 @ 4:24pm

Re: Re: Re: Re:
Notably, the C&D recipient wasn't offering a costume (or costume pattern), but a figurine (or its schematics).

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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gojomo (profile), 10 Feb 2015 @ 4:44pm

Re: Re: I'm with Perry's team on this
They're similar, as any shark costume would be. (They're also very evocative of Sanrio characters. If 'Hello, Kitty' had a shark friend, it'd look like Left Shark. A Sanrio v. Perry dispute might be fun!)

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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nasch (profile), 10 Feb 2015 @ 5:15pm

Re: Re: Re: Re: Re:
Notably, the C&D recipient wasn't offering a costume (or costume pattern), but a figurine (or its schematics).

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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Sheogorath (profile), 11 Feb 2015 @ 7:42am

Re: Re: Re:
Actually, Mike's right. While the design of might be copyrightable depending on its originality, the costume itself is not. Furthermore, I'd argue that this particular shark costume can't be copyrighted because it's not the first that ever existed.
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John Fenderson (profile), 11 Feb 2015 @ 8:31am

Re: Re: Re: I'm with Perry's team on this
I find the strong resemblance not to other shark costumes, but to other shark cartoon characters. I haven't actually searched, so my recollection may be deceiving me, but I do know that when I first saw the sharks, I thought they were directly lifted from elsewhere.

"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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gojomo (profile), 11 Feb 2015 @ 10:32am

Re: Re: Re: Re: I'm with Perry's team on this
Go ahead, try a search. Find a preceding shark cartoon character that would be easily confused with the Perry Concert Sharks among the public. (And, happy to see you're acknowledging the issue is a *character* not merely a *costume*. Can't characters like Spider-Man or Barney-the-Dinosaur be protected even though they often instantiate as people-in-costumes?)

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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Gwiz (profile), 11 Feb 2015 @ 11:04am

Re: Re: Re: Re: Re: I'm with Perry's team on this
Can't characters like Spider-Man or Barney-the-Dinosaur be protected even though they often instantiate as people-in-costumes?

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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Gwiz (profile), 11 Feb 2015 @ 11:24am

Re: Re: Re: Re: I'm with Perry's team on this
"Left Shark" is not a trademarked term, as far as I know.

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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gojomo (profile), 11 Feb 2015 @ 2:33pm

Re: Re: Re: Re: Re: Re: I'm with Perry's team on this
This obsessions with the 'costume' aspect is a distraction, not the reason I see a reasonable claim of IP.

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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Gwiz (profile), 11 Feb 2015 @ 4:35pm

Re: Re: Re: Re: Re: Re: Re: I'm with Perry's team on this
This obsessions with the 'costume' aspect is a distraction, not the reason I see a reasonable claim of IP.

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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Gwiz (profile), 11 Feb 2015 @ 4:38pm

Re: Re: Re: Re: Re: Re: Re: Re: I'm with Perry's team on this
*never seen by the infringer?
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gojomo (profile), 11 Feb 2015 @ 5:18pm

Re: Re: Re: Re: Re: Re: Re: Re: I'm with Perry's team on this
The "images" that you and the replica-maker saw were delivered by your TVs, at a rate of 24 images per second.

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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Drawoc Suomynona (profile), 13 Feb 2015 @ 9:04am

Re: Re: Re: Re: Re: Re: Re:
Yeah, that was uncalled for. I get frustrated when I try to bring up counter points here and get jumped on. My apologies. I'm usually much less prickly.

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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Joe Blough, 14 Feb 2015 @ 8:02am

Costumes, IP and ownership rights
Perry admitting that the NFL must approve and control her half-time performance does not mean that the NFL aquires the rights to the music she performs during the show. The NFL might end up with some partial or full ownership of the rights to the entire performance for the purpose of rebroadcasting it or selling it as a DVD/blueray or downloadable experience.

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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nasch (profile), 14 Feb 2015 @ 9:55am

Re: Costumes, IP and ownership rights
Perry admitting that the NFL must approve and control her half-time performance does not mean that the NFL aquires the rights to the music she performs during the show.

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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Bergman (profile), 25 Apr 2015 @ 6:58pm

Re: Re: What we really need
Does this mean that if a gentleman's wager is arranged by email, it becomes online gambling?
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