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