Can't Make This Up: Katy Perry's Lawyers Use Left Shark Photo Taken By Guy They're Threatening In Trademark Application

from the wait,-isn't-that-copyright-infringement? dept

Thu, Feb 12th 2015 4:09am — Mike Masnick

The story of Katy Perry and the 3D printed Left Shark keeps getting more and more bizarre. If you don't recall, Perry's lawyers threatened legal action over plans that were made available online for a 3D printed version of "the Left Shark." This was the internet meme that became a thing after one of Perry's backup dancers (dressed in a shark costume) looked a bit off during the Super Bowl. As we discussed, Perry's copyright claim seemed more than a bit off. Then the guy who made the 3d printed shark, Fernando Sosa, retained law professor and copyright expert Chris Sprigman, who responded to Perry's lawyers, explaining how there was no copyright interest here and how it would probably be best for everyone to just walk away slowly. Or quickly.

But, you know, these are lawyers we're talking about. High-powered, high-paid entertainment industry lawyers. They're not ones to just back down when someone points out that their copyright argument is bullshit. No, they double down. And thus, we get Perry's pricey Greenberg Taurig lawyers' response to Sosa and Sprigman [pdf] in which they try, desperately, to create a magical copyrightable shark costume out of pixie dust and words. But, as Sprigman explains in response [pdf], their argument is not convincing.

Perry's lawyers argue that Perry's team designed the shark and thus it's theirs, theirs, theirs. They even made drawings. They also admit that, while costumes aren't copyrightable, other elements of the costume are, as being "separable." Basically, if there are unique creative elements, those are copyrightable. But that's a stretch. As for the drawings, so what?

First, you claim that the Left Shark costume is copyrightable because it is based on the “multiple shark drawings” you say were produced by Katy Perry’s team. The drawings are irrelevant. Sketches of Left Shark may be copyrightable, but that doesn’t make the Left Shark costume copyrightable. A design sketch of a ladies’ dress is copyrightable. And yet as anyone in the U.S. fashion industry will tell you, the dress on the rack is a useful article, which, like a costume, cannot be copyrighted. The drawings of Left Shark would be relevant only if my client had copied them in preparing his sculpture. But he didn’t copy the drawings – not least because he’s never seen them. My client saw only the Left Shark costume. As I explained in my previous letter, the Left Shark costume is an uncopyrightable useful article, and my client is free to copy it.

As for the "separable elements"? Sprigman does a nice job with the lawyerly version of "WTF are you talking about?"

Second, you suggest that “conceptually separable elements” of the Left Shark costume may be copyrightable. Would you please tell me which elements of the Left Shark costume you believe to be conceptually separable from the costume as a whole? The dorsal fin, perhaps? The gills? The teeth?

When I look at the Left Shark costume, I don’t see “conceptually separable elements.” I see a shark costume. I am obliged to admit that, unlike any shark I’ve seen, the Left Shark costume has legs (and a quick Google search reveals that many other shark costumes have legs). But that doesn’t make the Left Shark costume copyrightable. The Left Shark costume has legs because the person inside of it has legs. The legs are not “conceptually separable” from the Left Shark costume. They are integral to its function as a costume.

Finally, rather than just "drop" the issue, Perry's lawyers said that Sprigman could call them up and they could discuss a license. But, of course, without a copyright there is nothing to license. This gets back to the mistaken belief by some that someone must own everything and thus you absolutely have to get permission. That's not true.

Perry's lawyers build on this to argue that the only reason the Left Shark is valuable is because of Perry, and thus she should be able to control all the benefits from Left Shark. Except, as Sprigman points out, that's almost entirely bullshit. Perry didn't make the Left Shark a thing, but rather the internet made it a thing.

Likewise, I disagree with your suggestion that Katy Perry owns rights in Left Shark because any commercial value my client’s sculptures may have “derives solely from the public’s association of them with Ms. Perry.” That statement misunderstands the source of whatever (probably scant) commercial value Left Shark may possess. No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the Internet told us so. The Internet decided that Left Shark’s flubbed dance moves were hilarious. It gave Left Shark his name, and then it made him into a meme. Left Shark isn’t really about Katy Perry.

There's even more in Sprigman's letter, but I actually wanted to focus on something else, which Fernando Sosa mentioned in his post about all of this. You see, after all of this blew up, Perry's lawyers also tried to file for a trademark on Left Shark. They pretty quickly gave that up (filed on February 6th and abandoned on February 10th). But here's the really crazy thing: they used Fernando Sosa's own image of his 3d printed shark as a part of their trademark application.

In other words, you could argue that, while Perry has no copyright (or trademark) in Left Shark, it's conceivable that Perry's lawyers could have violated Sosa's copyright in the image of his 3D printed item in using it as part of their trademark application. Now I could make a fairly strong argument for fair use for Perry's lawyers to use Sosa's image, but still... When you're arguing that the model is infringing on a potentially non-existent copyright, it seems to be quite a show of hubris to use the image created by the guy you're threatening and use that in your own trademark application.

Oh, and Sosa is now back to offering his 3d printed shark for sale, as he seems confident that Perry's lawyers have no leg to stand on.

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Filed Under: 3d printing, copyright, fernando sosa, katy perry, left shark, trademark

59 Comments

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That One Guy (profile), 12 Feb 2015 @ 2:36am

'It's only wrong when other people do it'
That last bit is just great. They're throwing a fit, claiming that someone is infringing upon their (imaginary) copyright, yet in a legal document they used someone else's picture, and I somehow doubt they bothered to ask permission first.

Ah blatant hypocrisy in action, gotta love it.
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- Ninja (profile), 12 Feb 2015 @ 3:03am
  
  Re: 'It's only wrong when other people do it'
  Ah blatant hypocrisy in action, gotta love it.
  
  Lawyers.
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  - Padpaw (profile), 12 Feb 2015 @ 1:59pm
    
    Re: Re: 'It's only wrong when other people do it'
    generally anyone that believes their power and wealth makes them better than anyone else. they have more rights than you because they say so.
    
    Like that idiot billionaire that is trying to make it so only the rich can vote.
    [ link to this | view in chronology ]
    - Pragmatic, 17 Feb 2015 @ 6:24am
      
      Re: Re: Re: 'It's only wrong when other people do it'
      Now, now, Padpaw, we can't have the mob influencing policy, can we?
      
      Yes indeed, it seems that we the people are actually a mob, and that if we try to influence policy by voting, we're initiating mob rule.
      
      And mobs are bad, right?
      
      Keep voting, but not for people who think like that.
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- Violynne (profile), 12 Feb 2015 @ 3:15am
  
  Re: 'It's only wrong when other people do it'
  Not surprising, given the same thing was done when copyright was being rewritten into draconian rules.
  
  Just ask William Patry, who one day woke up to find his 4 clauses, a draft, found their way into the law under Fair Use.
  
  It's atypical of those who abuse copyright: what's mine is mine, and what's yours is mine.
  [ link to this | view in chronology ]
- Anonymous Coward, 12 Feb 2015 @ 5:44am
  
  Re: 'It's only wrong when other people do it'
  "Ah blatant hypocrisy in action, gotta love it."
  
  And in their small minds it is the audience who feel "entitled", not themselves.
  
  Slight tangent ... I suspect this is action is the production company lawyers who have the copyright to said production in their back pocket and that Katy had no say in the matter nor consulted. Probably business as usual.
  [ link to this | view in chronology ]
- Anonymous Coward, 12 Feb 2015 @ 8:50pm
  
  Re: 'It's only wrong when other people do it'
  "Ah blatant hypocrisy in action, gotta love it."
  
  It's the American way!
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- Anonymous Coward, 12 Feb 2015 @ 11:32pm
  
  Re: 'It's only wrong when other people do it'
  It's not strictly hypocrisy, I don't think. It's more like following their own argument to its logical conclusion.
  
  Katy Perry owns Left Shark. This guy is 3d-printing Left Shark. Therefore Katy Perry owns the printed item, and any photos of it... so where's the problem?
  
  Disclaimer: I don't actually believe this, but it seems to be a logical, consistent view from their perspective. Greedy and amoral... but not hypocritical.
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- Reality bites, 13 Feb 2015 @ 7:54am
  
  Isn't Hypocrite every lawyers middle name?
  Do as I say not as I do.
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Ninja (profile), 12 Feb 2015 @ 3:03am

Left Shark isn’t really about Katy Perry.

I didn't know it was about Katy Perry up to when I read the first TD article about it. I originally saw a blurry gif that showed the left shark completely screwing up the performance but I never bothered to pay attention on who was on stage (the gif had a zoom on the sharks so Katy kind of was secondary). Funny thing I even remember the palm trees on the scenario but I had to go back and watch the entire thing again to see Perry doing whatever she was doing.
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- Anonymous Coward, 12 Feb 2015 @ 12:35pm
  
  Re:
  makes me wonder, could the dancer claim copyright for his/her performance? The only reason making it a meme is the arguable weird or out of sync perfomance by that person.
  [ link to this | view in chronology ]
  - John Fenderson (profile), 12 Feb 2015 @ 12:46pm
    
    Re: Re:
    No, the dancer could not. Copyright only applies to works that are in a fixed medium, and then it is held by the one who did the fixing. So any copyright would apply to the recording of the performance, not to the performance itself.
    [ link to this | view in chronology ]
    - Anonymous Coward, 12 Feb 2015 @ 1:14pm
      
      Re: Re: Re:
      Choreography can indeed be copyrighted -- and perhaps so too, theoretically, fancy between-the-leg basketball dunks, end-zone struts, and victory gymnastics.
      
      http://www.csulb.edu/~jvancamp/copyrigh.html
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      - John Fenderson (profile), 12 Feb 2015 @ 1:33pm
        
        Re: Re: Re: Re:
        Yes, but the question wasn't about the choreography (which the dancer probably didn't do), it was about the performance itself.
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        Anonymous Coward, 12 Feb 2015 @ 2:24pm
        
        Re: Re: Re: Re: Re:
        The WIPO Treaty conveys certain performance rights separate from (and in addition to) copyrights. It's worth reading.
        
        http://www.wipo.int/treaties/en/text.jsp?file_id=295578
        
        One apparent contradiction is that it specifically lists dancers as covered performers under the treaty, yet the phrase "fixed in phonograms" keeps popping up -- which would seemingly preclude virtually all but tap dancers.
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  - Nop (profile), 12 Feb 2015 @ 9:00pm
    
    Re: Re:
    Choreography can't be legally protected. Not by trademark, copyright, or anything else.
    [ link to this | view in chronology ]
relghuar, 12 Feb 2015 @ 4:23am

"Perry's lawyers have no leg to stand on"
Perhaps they should have donned the Left Shark costume? Apparently it has two of those...
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- David, 12 Feb 2015 @ 5:22am
  
  Re: "Perry's lawyers have no leg to stand on"
  It's not the costume that has legs but the performer. The lawyers, being genuine sharks themselves, are not so lucky.
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Anonymous Coward, 12 Feb 2015 @ 4:47am

What are the rules of fair-use vs. copyright infringement regarding government filings? Can a DMCA notice be submitted against the applicant or plaintiff?

In the RIAA's copyright infringement lawsuit against Usenet.com, they attached a purloined copy of the entire Slyck.com's "Guide to the Usenet Newsgroups" - ignoring Slyck's own copyright mark and therefore ironically committing an act of infringement in their attempt to stop another act of infringemnent.
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- Michael, 12 Feb 2015 @ 4:58am
  
  Re:
  It is generally accepted as fair use. I am not sure there has been any actual precedent, but I cannot imagine it going over well to sue over it.
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Gordon, 12 Feb 2015 @ 5:00am

I wonder if Katy Perry's lawyers (I personally doubt that Katy herself has much input beyond 'make me some money') would sue a tattoo artist for putting her logo on a fan...?
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- Anonymous Coward, 12 Feb 2015 @ 5:27am
  
  Re:
  That tattoo artist would deserve to be shot, not sued.
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  - Gordon, 12 Feb 2015 @ 6:51am
    
    Re: Re:
    "That tattoo artist would deserve to be shot, not sued."
    There is tthat aspect, yes. But as a hypothetical case...
    [ link to this | view in chronology ]
mrtraver (profile), 12 Feb 2015 @ 5:38am

Well played, MISTER Sosa; well played.
"Oh, and Sosa is now back to offering his 3d printed shark for sale..." I believe the mastermind Sosa is really pulling the strings behind all this, to raise awareness of his product. I had never heard of Left Shark before reading about it on techdirt, but I am all for anything to stick it to the entertainment industry as a whole and their lawyers in particular. Now take my money, Sosa!!

I don't have a beef with the entertainers themselves (well, maybe with Kanye West, but then again he is not entertaining). I don't believe that the Katy Perrys and Taylor Swifts out there are truly behind these incidents. other than maybe saying "OK" when their representation says "Hey, we can make us you more money if we do this."
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- Anonymous Coward, 12 Feb 2015 @ 5:56am
  
  Re: Well played, MISTER Sosa; well played.
  as i said previously, the taylor swifts/katy perrys of thw world essentially give up their individual humanity and independent agency by becoming a part of the Big Media borg...
  'their' shit gets beyond their own personal control, and they are -to a large extent, either wittingly or unwittingly- merely along for the ride...
  merely one in a list of a hundred reasons why such a situation is immoral on any number of levels...
  but, hey, they got millions, and i -a moral paragon *cough*cough*- am a cubicle slave...
  [ link to this | view in chronology ]
  - Anonymous Coward, 12 Feb 2015 @ 6:07am
    
    Re: Re: Well played, MISTER Sosa; well played.
    but, hey, they got millions
    
    Their labels, lawyers and managers have probably made more money from their music than they have. They are just the geese that lay golden eggs, and so must be protected at all costs.
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  - Anonymous Coward, 12 Feb 2015 @ 7:00am
    
    Re: Re: Well played, MISTER Sosa; well played.
    yep, thats the way EYE music works
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- John Fenderson (profile), 12 Feb 2015 @ 7:35am
  
  Re: Well played, MISTER Sosa; well played.
  "I don't believe that the Katy Perrys and Taylor Swifts out there are truly behind these incidents. other than maybe saying "OK" when their representation says "Hey, we can make us you more money if we do this.""
  
  ...which makes them behind these incidents. You are responsible for what your representatives do in your name.
  
  Also, even if they weren't aware when the actions were first taken, they certainly are now -- so they're actively responsible by not telling their lawyers to back off.
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  - PRMan, 12 Feb 2015 @ 8:40am
    
    Re: Re: Well played, MISTER Sosa; well played.
    Switchfoot got dropped like a hot rock when they told their fans how to load their CD without installing the Sony rootkit by holding down Shift.
    
    (They wanted out of the contract anyway at that point, but if you go against them, they have proven that they will do everything they can to bury you.)
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    - John Fenderson (profile), 12 Feb 2015 @ 8:45am
      
      Re: Re: Re: Well played, MISTER Sosa; well played.
      Yes, and so? If, hypothetically speaking, Perry is supporting these actions because she would suffer retribution from her label if she does not, that may be an entirely rational thing for her to do -- but that in no way means she's not responsible for choosing that path.
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Just Another Anonymous Troll, 12 Feb 2015 @ 6:35am

Trolling the copyright trolls
If he's got a lawyer writing letters for him, he might as well threaten to sue them over that picture. If Perry's lawyers are as dumb as they sound, they might actually take it seriously and offer to settle with him.
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- jupiterkansas (profile), 12 Feb 2015 @ 7:58am
  
  Re: Trolling the copyright trolls
  They'll just say the settlement is an implied license for Sosa to use the shark, and if anyone else does something similar they'll say "this guy got a license from us so you should too."
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jackn, 12 Feb 2015 @ 6:50am

I wonder if you can dmca the uspto
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TasMot (profile), 12 Feb 2015 @ 6:58am

No Leg to Stand On
Oh, and Sosa is now back to offering his 3d printed shark for sale, as he seems confident that Perry's lawyers have no leg to stand on.

You made a mistake there. We are talking about sharks, the Left Shark and the lawyer sharks, which in this case have no fins to swim with!
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Pixelation, 12 Feb 2015 @ 7:04am

I just have to say, Thank God for Copyright! I mean, Left Shark never would have happened without it...
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Anonymous Coward, 12 Feb 2015 @ 7:06am

Can anyone see any difference between Sosa's left shark and right shark?
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- David, 12 Feb 2015 @ 7:37am
  
  Re:
  Sure. According to the copyright sharks, you do not get to copy Left Sharks.
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  - Zonker, 12 Feb 2015 @ 10:55am
    
    Re: Re:
    But you do get to copy Right Sharks?
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    - Yakko Warner (profile), 12 Feb 2015 @ 3:29pm
      
      Re: Re: Re:
      No, because of the copy-right.
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David, 12 Feb 2015 @ 7:25am

Not just abandoned
But express abandoned. I think Sosa let Perry's lawyers know they seriously messed on that one. Sosa might still have some extra leverage on this, and could actually file a DCMA notice on the USPTO since use of that image is not licensed by Sosa on that web site!
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Ollie (profile), 12 Feb 2015 @ 7:55am

I resent all of these "lawyer-shark" comparisons. I'm actually taking a course in college, Biology of Sharks, and have learned that sharks are far more intelligent and discerning than lawyers- sharks know what is worth biting and what isn't. It would seem lawyers don't!
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LAB (profile), 12 Feb 2015 @ 8:09am

Hmmm if Charlie Brown, Snoopy, and Mickey Mouse can be copyrighted why not Left Shark?
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- jackn, 12 Feb 2015 @ 10:23am
  
  Re:
  copyright or trademark? (or both)
  
  I think you are confused.
  
  The law is a little more complicated than you realize.
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  - Pragmatic, 17 Feb 2015 @ 6:28am
    
    Re: Re:
    jackn is right. The movies, etc. in which they appear are copyright, the characters themselves are trademark. Had Left Shark been named and given a persona, it could have been trademarked. The film footage in which he appeared is copyright, but the shark costume is not.
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DogBreath, 12 Feb 2015 @ 8:19am

I can't wait...
until the lobotomized entertainment lawyers try to sue Fernando Sosa for violating the Left Sharks Publicity Rights.

It would appear they were trying to do this so it would apply Federally: "If a person can establish an aspect of his or her identity as a trademark, protection may be provided by Federal law."

Of course, there would be that pesky problem of getting the Left Shark declared a person, but these are lobotomized entertainment lawyers, so that wouldn't stop them.
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Anonymous Coward, 12 Feb 2015 @ 8:28am

Watching Mr. Entertainment Lawyer's bluff and bluster is much like watching a cat who just pavement-faced out of a window. Right now he's furiously licking himself and pretending that every move he flubbed was part of the plan. Next up: stalking off with his tail up in the air and muttering whatever the lawyerly equivalent of 'nyah nyah, fuck off you hoser' is.
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TtfnJohn (profile), 12 Feb 2015 @ 8:41am

You don't think do you....
That there is a pod of great white shark eating Killer Whales out there suing the lawyers for trying to deny them a perfectly good source of high quality protien which it is now known that Orcas commonly eat by trying to copyright Left Shark when everyone knows you can't copyright a food source an alpha predator desires and should the lawyers wish a demonstrations a pod of orcas will be glad to demonstrate the fulility of that the next time they go swimming off the coast of southern California. After, of course, they've been properly tested and have the Nutrition Facts labels propertly tatooed on themselves and adjusted for orcas as, after all no one really knows what genus "lawyer" actually consumes and some of it is likely toxic in large amounts to alpha predators. :-)
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Dave Cortright (profile), 12 Feb 2015 @ 8:55am

It's all depends on where you're standing...
From Katy's perspective, it was the right shark that was doing his own thing, making it even harder for her to claim that she owns the concept of "left shark" that the internet crowned.
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- John Fenderson (profile), 12 Feb 2015 @ 9:09am
  
  Re: It's all depends on where you're standing...
  You joke, but this seriously tripped me up.
  
  In the theater world, using "left" and "right" in reference to a stage is short for "stage left/right" and is always from the perspective of the performer. I've likely spent far too much time around stages, since this was how I instinctively interpreted "left shark," so when I was looking at videos trying to figure out what all the fuss was about, I was watching the wrong shark.
  [ link to this | view in chronology ]
  - Anonymous Coward, 12 Feb 2015 @ 10:29am
    
    Re: Re: It's all depends on where you're standing...
    And the director (or anyone else) standing in front of the stage following the script must learn to mentally reverse "left" with "right" as it appears in the script. I still remember that lesson from doing elementary school (2nd/3rd grade) plays.
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  - Zonker, 12 Feb 2015 @ 11:02am
    
    Re: Re: It's all depends on where you're standing...
    No, you were watching the Right Shark.
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Anonymous Coward, 12 Feb 2015 @ 9:59am

Left Shark
Katy Perry only has value because of her fans.
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- jackn, 12 Feb 2015 @ 10:24am
  
  Re: Left Shark
  thats the understatement of the century.
  
  but her people to. They need to make the music to go with the visual. no visual -> no katy perry
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  - jackn, 12 Feb 2015 @ 10:25am
    
    Re: Re: Left Shark
    my message got cut off
    
    no visual -> no katy perry and that is not music
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    - Anonymous Coward, 12 Feb 2015 @ 10:27am
      
      Re: Re: Re: Left Shark
      just nevermind
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Anonymous Coward, 13 Feb 2015 @ 10:08am

http://i.imgur.com/4MJHuy2.jpg
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Anonymous Coward, 13 Feb 2015 @ 10:09am

http://printallover.me/products/0000000p-left-shark-6?social=true
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A Lawyer, 14 Feb 2015 @ 3:58pm

Greenberg Traurig
I once had a similar experience with GT, when a client asked my then-firm for a second opinion after being told by GT that it had a slam-dunk patent infringement case against a competitor. We showed the client why its case was iffy at best and probably not worth pursuing. Didn't follow-up to see if the client took our advice or followed the GT-KP, all-guns-blazing-but-firing-blanks approach.
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Reggie Rocko, 16 Feb 2015 @ 3:27am

Left Shark
Im a producer/consultant In the music/entertainment Industry.I knew from the jump Katy Perry did not own the copyright to left shark! Nobody does!First of all its a shark, millions of them on this planet.
Second of all Left shark was just a shark until the internet named him and gave him vaule! NO WAY KATY PERRY PLANED FOR THAT SHARK TO MESS UP THE DANCE ROUTINE.And thats the only reason left shark got famous! Funny how clients/lawyers lie!Crazy how they tried to copyright Left shark after the fact with my mans 3d design and the internets name! He should be suing her!! LOL Mickey Mouse is a mouse but was sketched,drawn created and NAMED before the public ever seen or heard about Mickey Mouse thats why its a protected image/name. If you ever need a smart professional Entertainment Consultant contact me 404 692 4090 Reggie Rocko
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