This is the latest installment in a series of "Legal Geek" articles and audio segments regarding current events and trends where the geek world crosses streams with legal land. An audio version will appear on the Current Geek podcast, available for direct download here.
back to Legal Geek. This week, based on a listener request, we take a look at another interesting story related to the Super Bowl, this being Katy Perry trying to enforce intellectual property rights in the Left Shark of the halftime show.
(Stop!...in the name of love...before you infringe my copyright...)
Katy Perry provided a number of nifty visuals and performances during her multi-song halftime show, but the one that transcended the night and turned into the latest internet meme was her performance of the song Teenage Dreams, where dancing beach balls, sharks, and trees surrounded her on stage. The shark dancing on the left side of Perry was hilariously out of choreography and sync compared to the right shark and the rest of the dancers. That led to an explosion of Left Shark parodies and commentary online (and even a snarky ESPN Sportscenter advertisement about the performance).
Of course, this also led to people trying to profit off this sure-to-be-short-lived sensation. One of these people was Fernando Sosa, who started selling sculpted figurines of the left shark on his website Political Sculptor.
Katy Perry put her best attorneys on the case, and they first sent a Cease and Desist letter to Sosa based on an alleged copyright claim. This claim looked good enough to cause the website host to comply with the Cease and Desist. However, when this story hit the news, legal experts weighed in and confirmed that the Left Shark costume likely was not copyrightable subject matter.
Costumes and other garments are useful items not typically subject to copyright except for design elements that are separable physically or conceptually from the garment and having originality beyond just contributing to the costume's intended appearance. This rule about costumes and separability was confirmed in the 2014 Compendium of Copyright Office Practices, the same document that explained why monkeys and god-like deities could not obtain copyright at the U.S. Copyright Office.
The Left Shark costume is a full body costume shaped like a shark with fins, eyes, gills, and teeth, all of which appear to be integrated elements not physically separable or conceptually original beyond the use in appearing like a shark. Thus, a copyright claim would likely fail, whether at the copyright office or in court. Katy Perry's attorneys then tried to claim the costume was based on several sketches which Sosa infringes, but this is easily avoided because Sosa never saw the sketches and is not copying anything other than the costume in the halftime show.
That led Katy Perry's attorneys to try something else, specifically filing trademark applications on Left Shark and Right Shark among other shark-related marks. This may just be a tactic to bully small shops and sellers like Sosa out of the market based on the slim potential these applications become enforceable IP rights. But the likelihood that these trademarks will be registered seems slim, as the Left Shark and Right Shark terms came out of the internet meme rather than Perry herself. Thus, she will have trouble proving actual ownership in these marks, let alone that they actually serve the purpose of trademarks, which is to identify an origin of goods and services.
Bottom Line: Katy Perry and her legal team can't be faulted for trying to protect some profitable moments of fame stemming from her memorable halftime performance, but the claims to IP rights are pretty clearly flawed. If she wants to sell memorabilia and figurines about Left Shark, she will have to just enter the free market and compete with others. Perry will be fine, because after all...
"I kissed a girl, and I liked it..."
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