Ask Dr. Copyright …
I watched the Big Game (a/k/a SuperBowl®) and though I enjoyed the game (I would report the score, but that might make the NFL angry, since they told us that unauthorized use is strictly prohibited) I really enjoyed the halftime show. My favorite part was the dancing sharks behind Katy Perry, and my favorite shark was the left one, who seemed not to have gotten the memo about what the dance was and just flopped about. I heard that a guy was selling little “left shark” figurines that are 3D printed, but that Ms. Perry’s lawyers wrote him a nastygram cease-and-desist letter that said that she owned the “exclusive rights to reproduce, display, and distribute its copyrighted images under the United States Copyright Act as set forth in 17 U.S.C §106.”
I heard that the sale was stopped, but then started again a few days later. What gives?
The Doc looked into this legal feeding frenzy, and here’s what’s fishy about what he found…
It’s true that the lawyers at Greenberg Traurig sent a nastygram to Shapeways HQ and its owner, Fernando Sosa, who was selling little “left shark” figurines, claiming that their sale violated Ms. Perry’s “IP” (which they defined as, “the 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.”) It’s also true that the lawyers said that selling the figurines violated Katy’s rights under 17 U.S.C. §106, and that they threatened Sosa with, “actual damages, statutory damages, and punitive damages, as well as immediate and permanent injunctive relief.” (Those lawyers, it seems, are not mere minnows to be trifled with!)
Enter New York University law professor Christopher Sprigman. He offered to help Sosa (for free!) and pointed out Katy appears not to own any IP rights, and that costumes are “useful articles”. Under Copyright law, useful articles are not copyrightable unless there are elements that are “separable” from the useful article itself. Check.
Sosa resumed sale of his left shark the next day. He also posted the 3D data file so that anyone may download and print her own left shark figurine for free (you just need a 3D printer).
Now it’s possible that there is something protectable about left shark. It’s also possible that left shark may have trademark aspects that Katy or the NFL could assert. After all, there’s blood in the water, and that’s sure to continue to attract circling lawyers as long as Katy and the NFL have the money to pay them (which means for a very, very long time.) The Doc, however, thinks that left shark is already trending into the depths of the Internet. After all, nobody remembers Janet Jackson’s Super Bowl half-time performance!
STOP THE PRESSES! An update: Katy’s lawyers must have read the Doc’s alleged mind. They have now filed a trademark application to register left shark. No followup letter yet, but stay tuned to your local late news…
Have a question about your useful articles? Talk to the sharks…uh, attorneys… at LW&H. They just keep on swimming in the IP ocean, enforcing their clients rights against infringers, and they do it without remoras.
— Lawrence Husick, Esq.