Volume 19 Issue 1 (Spring 2015)
The ongoing drama/comedy centering on the star of the Super Bowl half-time show, Left Shark, has drawn an unusual amount of public attention to intellectual property issues and, thanks to the highly questionable (at best) nature of claims made by Katy Perry’s legal team, led to public confusion about the law. Which creates a great opportunity for a brief primer on the issues!
Who, or what, is Left Shark?
During her half-time performance, Katy Perry was flanked by two dancers dressed as sharks. Not far into the song, the shark to the audience’s left seemed to completely lose the beat. Critics were merciless, but although Left Shark may indeed be “one of the worst backing dancers ever,” he also stole the show. Left Shark went viral before his head hit the pillow that night.
The next day, Fernando Sosa began selling on Etsy small 3-D printed sculptures of Left Shark. He immediately received a cease-and-desist letter from Ms. Perry’s attorneys, claiming his actions infringed Ms. Perry’s copyrights. Then things got really weird.
Team Perry also filed federal trademark applications for the Left Shark figure, which were withdrawn four days after they were filed, for a range of goods from coffee mugs to toys. And the applications included an image taken from Mr. Sosa’s website. What were they thinking?
Is there any bite to those legal claims?
It is highly unlikely that Left Shark is protectable by copyright. Because costumes have a utilitarian function, to be protectable, they must contain creative components that are either physically or “conceptually” separable from the utilitarian components. It is hard to see what those elements would be in this case, as detailed by Mr. Sosa’s lawyer.
Assuming copyright protection, it is unlikely Ms. Perry owns the copyright. To do so, she would have had to (1) design the costume herself, or (2) have one of her employees (not a contractor) design the costume, in which case she would own the copyright under the work made for hire doctrine, or (3) obtain a written assignment from the copyright owner. Number 1 seems highly unlikely, and #2 and #3 only slightly less so.
Then there’s the case of the mysterious disappearing trademark applications. To be a trademark, an image (or words) must, in the mind of the consumer, link the goods on which it is used with the source of the goods. It’s not necessary that you – the consumer – know that your OREO cookie came from Nabisco, just that it came from the same place as the last OREO cookie you ate and should thus be of comparable quality.
It is hard to see how most of the allegedly intended uses of Left Shark would constitute trademark usage. For example, selling a mug depicting Left Shark is not a trademark usage; the trademark would be Lenox, Oggi, or Noritake. If a line of mugs of various designs all featured an image of Left Shark somewhere on the mug, then it could constitute a trademark.
No wonder the public thinks the law is so confusing, when much of what they
hear comes from stories like The Tale of Left Shark!