There's Something Fishy With Katy Perry's Left Shark 3D Printing Takedown

from the you-can't-copyright-that dept

I spent this past Sunday spending time with my family and some friends not watching the Super Bowl, so I missed all the commercials and the exciting finish to the game… and the half-time show and the wonder that is the left shark. Still, I heard plenty about it on the internet because apparently the people I follow on Twitter couldn’t get enough of the whole shark thing. If you were lucky enough to avoid it entirely, apparently Perry had some shark dancers, and the one on the left appeared to be somewhat… less coordinated than the right one (though Perry’s team now claims that the choreography went off exactly as planned).

Either way, the left shark has become a thing. And, so, of course, someone had to go make a 3D printable version of it — and uploaded plans to Shapeways. Well, until Perry’s lawyers stepped in and said nuh uh. Her big time lawyers are claiming that the plans violate Perry’s copyright and demanded that Shapeways cease and desist, and provide a “full accounting” of any money they made from it.

Our client recently has learned that you have been involved in the manufacture, sale, marketing and distribution of merchandise featuring a shark sculpture which embodies and uses the IP, and that you have displayed this product on your website, www.shapeways.com, in connection with such sale and distribution.

As you are undoubtedly aware, our client never consented to your use of its copyrighted work and IP, nor did our client consent to the sale of the infringing product. Your unauthorized display and sale of this product infringes our client’s exclusive rights in numerous ways, including, but not limited to, infringement of our client’s 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.

Your infringing conduct entitles our client to significant legal relief against you, which may include actual damages, statutory damages, and punitive damages, as well as immediate and permanent injunctive relief.

Shapeways has apparently consented, but it’s worth noting that almost all of the above is a bunch of hogwash. As law profess Chris Sprigman pointed out, a shark costume is almost certainly a “useful article” and thus, is not subject to copyright protection:

For purposes of copyright registration, fanciful costumes will be treated as useful articles. Costumes serve a dual purpose of clothing the body and portraying their appearance. Since clothing the body serves as a useful function, costumes fall within the literal defdtion of useful article. In addition. the case law consistently treats I costumes as useful articles, and a Copyright Office decision to differ substantially from these court decisions would appear difficult to justify.

But, for now the files have been taken down, because, really is it worth a lawsuit over the left shark?

We’ve been pointing out for years that there are going to be a number of intellectual property questions raised by 3D printing. And while this one isn’t particularly deep in terms of raising new issues of law, considering it some bizarre foreshadowing of legal disputes to come.



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Companies: shapeways

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Comments on “There's Something Fishy With Katy Perry's Left Shark 3D Printing Takedown”

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32 Comments
Ninja (profile) says:

Katy Perry LAWYERS Claim Copyright Over Left Shark

I doubt she would do it if not assisted by the vultures. Most likely she’d find it funny and shake it off. Just like the left shark seemed blissfully ignorant of the choreography.

It is clear that this is just some money grabbing attempt. Had the sharks gone unnoticed nobody would be claiming a thing over some ‘extras performance’.

DogBreath says:

I heard there was a label on the costume...

For those that had the UUUHD (Ultra-Ultra-Ultra High Definition) 100K X-Ray TVs, they claim to have seen the label on the in inside of Left Shark Costume (in all known and a few unknown languages) stating the following:

“The physical reproduction by any means known or yet to be invented (including recasting and/or reverse engineering or 3D scanning/printing) of the Left Shark Costume or any of it’s parts is expressly prohibited under U.S. and International copyright and product protection laws.”

Hey, it worked for Eugene Roddenberry.

John Fenderson (profile) says:

I don't see it

Since I’ve been too busy over the last few weeks to keep up on my memes, I was completely unaware of this shark thing until I read this. I watched a video clip of the performance in action, and I don’t really see any appreciable difference in the quality of dancing between the two sharks. So I have a question: which one is the “left” one? Is it my left or stage left?

Anonymous Coward says:

The directions to make a thing are not the thing.

A recipe is not a cake.
A crypto algorithm is not a movie.
Instructions to make a 3D sculpture are not the sculpture.
Nor is a sculpture a costume. Unless, of course, it is…

The original sharks were not statues, so statue-infringment isn’t happening here. Trademark issues are possible, except for the lack of trademark registration. Copyright? Not so much.

Anonymous Coward says:

“For purposes of copyright registration, fanciful costumes will be treated as useful articles. Costumes serve a dual purpose of clothing the body and portraying their appearance. Since clothing the body serves as a useful function, costumes fall within the literal defdtion of useful article.”

But what about all those lawsuits wielded against people who sold — or wore professionally — a white, sequin-studded jumpsuit without paying the estate of a certain dead celebrity?

http://www.outdoorhub.com/news/2014/04/17/elvis-estate-sues-beretta-ad-campaign-featuring-king/

Mark D. (profile) says:

A fun mess

Yes, funny that the letter refers to Katy Perry as an ‘It’. I’d wager that is not a correct party identification, as there is undoubtedly one or more limited liability entities that she does business under.

I’d also be interested in whether the actual costume designer actually executed any form of assignment (of whatever rights) and in favor of whom?

Finally, since the model creator was unlikely present in person, there is always this: “This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.”

I’d file the dec action pro bono against It Perry & this GT Bozo…uhoh maybe they also represent Bozo…

Titan (user link) says:

The way of living: displayed by the left shark

I normally do not watch the super bowl but ended up watching it and I was surprised how badly the costumes and choreography for the KP show was. I thought the tiger was ridicules and enjoyed watching the left shark. That would have totally been me. I still think that dancer lost a bet to a friend and that friend did not have enough time to learn the steps…

Taking the left shark off shapeways was strange. The left shark would have never been popular or was supposed to be a popular act in the show. If any, it would have helped KP to get more left shark promotion.

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