Can't Make This Up: Katy Perry's Lawyers Use Left Shark Photo Taken By Guy They're Threatening In Trademark Application

from the wait,-isn't-that-copyright-infringement? dept

The story of Katy Perry and the 3D printed Left Shark keeps getting more and more bizarre. If you don’t recall, Perry’s lawyers threatened legal action over plans that were made available online for a 3D printed version of “the Left Shark.” This was the internet meme that became a thing after one of Perry’s backup dancers (dressed in a shark costume) looked a bit off during the Super Bowl. As we discussed, Perry’s copyright claim seemed more than a bit off. Then the guy who made the 3d printed shark, Fernando Sosa, retained law professor and copyright expert Chris Sprigman, who responded to Perry’s lawyers, explaining how there was no copyright interest here and how it would probably be best for everyone to just walk away slowly. Or quickly.

But, you know, these are lawyers we’re talking about. High-powered, high-paid entertainment industry lawyers. They’re not ones to just back down when someone points out that their copyright argument is bullshit. No, they double down. And thus, we get Perry’s pricey Greenberg Taurig lawyers’ response to Sosa and Sprigman [pdf] in which they try, desperately, to create a magical copyrightable shark costume out of pixie dust and words. But, as Sprigman explains in response [pdf], their argument is not convincing.

Perry’s lawyers argue that Perry’s team designed the shark and thus it’s theirs, theirs, theirs. They even made drawings. They also admit that, while costumes aren’t copyrightable, other elements of the costume are, as being “separable.” Basically, if there are unique creative elements, those are copyrightable. But that’s a stretch. As for the drawings, so what?

First, you claim that the Left Shark costume is copyrightable because it is based on the ?multiple shark drawings? you say were produced by Katy Perry?s team. The drawings are irrelevant. Sketches of Left Shark may be copyrightable, but that doesn?t make the Left Shark costume copyrightable. A design sketch of a ladies? dress is copyrightable. And yet as anyone in the U.S. fashion industry will tell you, the dress on the rack is a useful article, which, like a costume, cannot be copyrighted. The drawings of Left Shark would be relevant only if my client had copied them in preparing his sculpture. But he didn?t copy the drawings ? not least because he?s never seen them. My client saw only the Left Shark costume. As I explained in my previous letter, the Left Shark costume is an uncopyrightable useful article, and my client is free to copy it.

As for the “separable elements”? Sprigman does a nice job with the lawyerly version of “WTF are you talking about?”

Second, you suggest that ?conceptually separable elements? of the Left Shark costume may be copyrightable. Would you please tell me which elements of the Left Shark costume you believe to be conceptually separable from the costume as a whole? The dorsal fin, perhaps? The gills? The teeth?

When I look at the Left Shark costume, I don?t see ?conceptually separable elements.? I see a shark costume. I am obliged to admit that, unlike any shark I?ve seen, the Left Shark costume has legs (and a quick Google search reveals that many other shark costumes have legs). But that doesn?t make the Left Shark costume copyrightable. The Left Shark costume has legs because the person inside of it has legs. The legs are not ?conceptually separable? from the Left Shark costume. They are integral to its function as a costume.

Finally, rather than just “drop” the issue, Perry’s lawyers said that Sprigman could call them up and they could discuss a license. But, of course, without a copyright there is nothing to license. This gets back to the mistaken belief by some that someone must own everything and thus you absolutely have to get permission. That’s not true.

Perry’s lawyers build on this to argue that the only reason the Left Shark is valuable is because of Perry, and thus she should be able to control all the benefits from Left Shark. Except, as Sprigman points out, that’s almost entirely bullshit. Perry didn’t make the Left Shark a thing, but rather the internet made it a thing.

Likewise, I disagree with your suggestion that Katy Perry owns rights in Left Shark because any commercial value my client?s sculptures may have ?derives solely from the public?s association of them with Ms. Perry.? That statement misunderstands the source of whatever (probably scant) commercial value Left Shark may possess. No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the Internet told us so. The Internet decided that Left Shark?s flubbed dance moves were hilarious. It gave Left Shark his name, and then it made him into a meme. Left Shark isn?t really about Katy Perry.

There’s even more in Sprigman’s letter, but I actually wanted to focus on something else, which Fernando Sosa mentioned in his post about all of this. You see, after all of this blew up, Perry’s lawyers also tried to file for a trademark on Left Shark. They pretty quickly gave that up (filed on February 6th and abandoned on February 10th). But here’s the really crazy thing: they used Fernando Sosa’s own image of his 3d printed shark as a part of their trademark application.

In other words, you could argue that, while Perry has no copyright (or trademark) in Left Shark, it’s conceivable that Perry’s lawyers could have violated Sosa’s copyright in the image of his 3D printed item in using it as part of their trademark application. Now I could make a fairly strong argument for fair use for Perry’s lawyers to use Sosa’s image, but still… When you’re arguing that the model is infringing on a potentially non-existent copyright, it seems to be quite a show of hubris to use the image created by the guy you’re threatening and use that in your own trademark application.

Oh, and Sosa is now back to offering his 3d printed shark for sale, as he seems confident that Perry’s lawyers have no leg to stand on.

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Comments on “Can't Make This Up: Katy Perry's Lawyers Use Left Shark Photo Taken By Guy They're Threatening In Trademark Application”

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That One Guy (profile) says:

'It's only wrong when other people do it'

That last bit is just great. They’re throwing a fit, claiming that someone is infringing upon their (imaginary) copyright, yet in a legal document they used someone else’s picture, and I somehow doubt they bothered to ask permission first.

Ah blatant hypocrisy in action, gotta love it.

Pragmatic says:

Re: Re: Re: 'It's only wrong when other people do it'

Now, now, Padpaw, we can’t have the mob influencing policy, can we?

Yes indeed, it seems that we the people are actually a mob, and that if we try to influence policy by voting, we’re initiating mob rule.

And mobs are bad, right?

Keep voting, but not for people who think like that.

Violynne (profile) says:

Re: 'It's only wrong when other people do it'

Not surprising, given the same thing was done when copyright was being rewritten into draconian rules.

Just ask William Patry, who one day woke up to find his 4 clauses, a draft, found their way into the law under Fair Use.

It’s atypical of those who abuse copyright: what’s mine is mine, and what’s yours is mine.

Anonymous Coward says:

Re: 'It's only wrong when other people do it'

“Ah blatant hypocrisy in action, gotta love it.”

And in their small minds it is the audience who feel “entitled”, not themselves.

Slight tangent … I suspect this is action is the production company lawyers who have the copyright to said production in their back pocket and that Katy had no say in the matter nor consulted. Probably business as usual.

Anonymous Coward says:

Re: 'It's only wrong when other people do it'

It’s not strictly hypocrisy, I don’t think. It’s more like following their own argument to its logical conclusion.

Katy Perry owns Left Shark. This guy is 3d-printing Left Shark. Therefore Katy Perry owns the printed item, and any photos of it… so where’s the problem?

Disclaimer: I don’t actually believe this, but it seems to be a logical, consistent view from their perspective. Greedy and amoral… but not hypocritical.

Ninja (profile) says:

Left Shark isn’t really about Katy Perry.

I didn’t know it was about Katy Perry up to when I read the first TD article about it. I originally saw a blurry gif that showed the left shark completely screwing up the performance but I never bothered to pay attention on who was on stage (the gif had a zoom on the sharks so Katy kind of was secondary). Funny thing I even remember the palm trees on the scenario but I had to go back and watch the entire thing again to see Perry doing whatever she was doing.

Anonymous Coward says:

Re: Re: Re:3 Re:

The WIPO Treaty conveys certain performance rights separate from (and in addition to) copyrights. It’s worth reading.

One apparent contradiction is that it specifically lists dancers as covered performers under the treaty, yet the phrase “fixed in phonograms” keeps popping up — which would seemingly preclude virtually all but tap dancers.

Anonymous Coward says:

What are the rules of fair-use vs. copyright infringement regarding government filings? Can a DMCA notice be submitted against the applicant or plaintiff?

In the RIAA’s copyright infringement lawsuit against, they attached a purloined copy of the entire’s “Guide to the Usenet Newsgroups” – ignoring Slyck’s own copyright mark and therefore ironically committing an act of infringement in their attempt to stop another act of infringemnent.

mrtraver (profile) says:

Well played, MISTER Sosa; well played.

“Oh, and Sosa is now back to offering his 3d printed shark for sale…” I believe the mastermind Sosa is really pulling the strings behind all this, to raise awareness of his product. I had never heard of Left Shark before reading about it on techdirt, but I am all for anything to stick it to the entertainment industry as a whole and their lawyers in particular. Now take my money, Sosa!!

I don’t have a beef with the entertainers themselves (well, maybe with Kanye West, but then again he is not entertaining). I don’t believe that the Katy Perrys and Taylor Swifts out there are truly behind these incidents. other than maybe saying “OK” when their representation says “Hey, we can make us you more money if we do this.”

Anonymous Coward says:

Re: Well played, MISTER Sosa; well played.

as i said previously, the taylor swifts/katy perrys of thw world essentially give up their individual humanity and independent agency by becoming a part of the Big Media borg…
‘their’ shit gets beyond their own personal control, and they are -to a large extent, either wittingly or unwittingly- merely along for the ride…
merely one in a list of a hundred reasons why such a situation is immoral on any number of levels…
but, hey, they got millions, and i -a moral paragon coughcough*- am a cubicle slave…

John Fenderson (profile) says:

Re: Well played, MISTER Sosa; well played.

“I don’t believe that the Katy Perrys and Taylor Swifts out there are truly behind these incidents. other than maybe saying “OK” when their representation says “Hey, we can make us you more money if we do this.””

…which makes them behind these incidents. You are responsible for what your representatives do in your name.

Also, even if they weren’t aware when the actions were first taken, they certainly are now — so they’re actively responsible by not telling their lawyers to back off.

PRMan (profile) says:

Re: Re: Well played, MISTER Sosa; well played.

Switchfoot got dropped like a hot rock when they told their fans how to load their CD without installing the Sony rootkit by holding down Shift.

(They wanted out of the contract anyway at that point, but if you go against them, they have proven that they will do everything they can to bury you.)

DogBreath says:

I can't wait...

until the lobotomized entertainment lawyers try to sue Fernando Sosa for violating the Left Sharks Publicity Rights.

It would appear they were trying to do this so it would apply Federally: “If a person can establish an aspect of his or her identity as a trademark, protection may be provided by Federal law.”

Of course, there would be that pesky problem of getting the Left Shark declared a person, but these are lobotomized entertainment lawyers, so that wouldn’t stop them.

Anonymous Coward says:

Watching Mr. Entertainment Lawyer’s bluff and bluster is much like watching a cat who just pavement-faced out of a window. Right now he’s furiously licking himself and pretending that every move he flubbed was part of the plan. Next up: stalking off with his tail up in the air and muttering whatever the lawyerly equivalent of ‘nyah nyah, fuck off you hoser’ is.

TtfnJohn (profile) says:

You don't think do you....

That there is a pod of great white shark eating Killer Whales out there suing the lawyers for trying to deny them a perfectly good source of high quality protien which it is now known that Orcas commonly eat by trying to copyright Left Shark when everyone knows you can’t copyright a food source an alpha predator desires and should the lawyers wish a demonstrations a pod of orcas will be glad to demonstrate the fulility of that the next time they go swimming off the coast of southern California. After, of course, they’ve been properly tested and have the Nutrition Facts labels propertly tatooed on themselves and adjusted for orcas as, after all no one really knows what genus “lawyer” actually consumes and some of it is likely toxic in large amounts to alpha predators. 🙂

John Fenderson (profile) says:

Re: It's all depends on where you're standing...

You joke, but this seriously tripped me up.

In the theater world, using “left” and “right” in reference to a stage is short for “stage left/right” and is always from the perspective of the performer. I’ve likely spent far too much time around stages, since this was how I instinctively interpreted “left shark,” so when I was looking at videos trying to figure out what all the fuss was about, I was watching the wrong shark.

A Lawyer says:

Greenberg Traurig

I once had a similar experience with GT, when a client asked my then-firm for a second opinion after being told by GT that it had a slam-dunk patent infringement case against a competitor. We showed the client why its case was iffy at best and probably not worth pursuing. Didn’t follow-up to see if the client took our advice or followed the GT-KP, all-guns-blazing-but-firing-blanks approach.

Reggie Rocko (profile) says:

Left Shark

Im a producer/consultant In the music/entertainment Industry.I knew from the jump Katy Perry did not own the copyright to left shark! Nobody does!First of all its a shark, millions of them on this planet.
Second of all Left shark was just a shark until the internet named him and gave him vaule! NO WAY KATY PERRY PLANED FOR THAT SHARK TO MESS UP THE DANCE ROUTINE.And thats the only reason left shark got famous! Funny how clients/lawyers lie!Crazy how they tried to copyright Left shark after the fact with my mans 3d design and the internets name! He should be suing her!! LOL Mickey Mouse is a mouse but was sketched,drawn created and NAMED before the public ever seen or heard about Mickey Mouse thats why its a protected image/name. If you ever need a smart professional Entertainment Consultant contact me 404 692 4090 Reggie Rocko

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