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.