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

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.

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

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.

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.

Filed Under: 3d printing, chris sprigman, copyright, costumes, fernando sosa, katy perry, left shark, useful articles