February 17, 2015

Katy and Left Shark: Pop Divas Flex IP Muscles

If you watched the Super Bowl halftime show, then you know about Katy Perry and the dancing sharks (and dancing beach balls, and dancing palm trees). If you didn't watch it, you should hasten to YouTube and watch immediately. Here is a link that was working when this was posted, but a bunch of others were taken down in response to notices from the NFL. So don't tarry.


The breakout star of the show is now known simply as "Left Shark." It's first visible at about 4:25 into the video linked above. Keen-eyed watchers noticed that while the shark-costumed dancer on the right (I'm assuming its name is "Right Shark") was performing pretty tight dance moves â considering the shark suit and all â the one on the left was a bit out of sync and might possibly have forgotten parts of the routine. Within hours, Left Shark was burning up the Internet. It was inevitable that people would soon begin selling Left Shark merchandise.

And they did. The seller who has gotten the most press is Fernando Sosa, who uploaded plans for a 3D-printable version of Left Shark to a website that hosts that kind of thing. By the Tuesday after Super Bowl Sunday, Ms. Perry's intellectual property lawyers had fired off a "cease and desist" letter to the website, claiming that the post violated Ms. Perry's copyright in the shark costume.

Trouble is, back in 1991 the Copyright Office came out with a document announcing a policy on costume designs. It said a costume will be treated as a "useful article," which means that its design elements would only be copyrightable if it contains pictorial or sculptural elements that are either physically or conceptually separable from the costume's overall utilitarian shape. That analysis might get a little metaphysical, but the gist seems to be that securing copyright protection for Left Shark's costume is going to be pretty tough sledding. Mr. Sosa hired a lawyer who sent a letter back to Ms. Perry's lawyers raising that issue along with a bunch of other questions about possible weaknesses in her claim. He ended with a request that they step back, consider whether this is really worth doing, and drop the whole thing. I wish him luck.

Meanwhile, Mr. Sosa is selling a shark figurine on Etsy.

Sosas Left Shark

Sosa's left shark costume

Ms. Perry might consider trying a different route: adopt Left Shark as a trademark. To show infringement of a copyright, she would have to show that she owns a valid copyright and that the infringer copied protected material. That may not be so easy (or possible). Trademark infringement, on the other hand, does not require copying. A trademark claim requires that the mark be distinctive, that the accused infringement creates a likelihood of confusion, and that the owner has rights that are prior to the accused infringer's rights. If Ms. Perry does what she needs to do to secure relevant trademarks, she might have an easier time dealing with sellers of Left Shark stuff. But by that time, the world will have moved on. She could have dealt with this before the show, but of course at that time nobody knew Left Shark was about to be big.

Left Shark Sweatshirt

Don't you want to order your very own left shark sweatshirt?

Meanwhile, as presaged by last Friday's post, Taylor Swift has pursued evildoers who are selling (allegedly) infringing materials on the Etsy website. For the uninitiated, Etsy is an online marketplace that features a lot of goods that people have made themselves â jewelry, paintings, and other objets d'art â along with antiques, knick-knacks, and a lot of whatnot. Shown below is a screenshot of some of the goods I found when I went to the site and searched on "Taylor Swift." Some of these may well be authorized goods, and others may be items Ms. Swift or her minions would consider to be infringements. Etsy apparently received notices from Ms. Swift's rights management people demanding that a number of items be taken off the site.


These cases raise the question: is it a good idea for a star to go after her fans? Certainly some people may be selling infringing goods as a way of cashing in on someone else's popularity. But others are pretty surely an expression of that popularity: they make Taylor Swift stuff and sell it online because they love Taylor Swift and want to interact with others who do, too. Particularly where the infringement is not cut and dried, the smart thing might be to let those fans have their fun and keep them on your side rather than take an aggressive stance and break the hearts of the teenage girls who love(d) you. In the case of Left Shark, let people enjoy the fleeting moment, and if someone makes a little money on it, consider it a gift. It would probably only increase Ms. Perry's popularity. But pop divas never listen to me.

Here's a quick looping video of the raw splendor of the shark dance:


And here's ESPN's take on it:


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