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Copyright Question: Who Owns the Left Shark?

The 2015 Super Bowl (or Super Bowl XXVZPDQ or something) has generated a legal controversy. No, Seahawks coach Pete Carroll is not being sued for his terrible play calling. Rather, we’ve learned that Katy Perry’s attorneys have sent out a copyright cease and desist letter related to the infamous Left Shark. Does copyright law protect the image of an awkwardly dancing person in a shark costume?

As you’ll recall from school, Article 1, Section 8, Clause 8 of the US Constitution reads, in part:

The Congress shall have Power To…promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries, including Sharks…

It’s possible that’s not an exact quote, but you get the idea.

According to the LA Times, the target of the cease and desist letter is…

…an Orlando, Fla.-based designer named Fernando Sosa who sells pop-culture and political-themed items through Shapeways, a company in New York City that does 3-D printing on demand. Sosa jumped on the Left Shark bandwagon early this week, offering a miniature version of the character in “full color sandstone” for $25.

Perry’s attorneys sent this cease and desist letter to Shapeways on Tuesday, February 3 (note – that’s just 2 days after the Super Bowl).

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.

A point of clarification here: the “U.S.C.” in “17 U.S.C. §106” is not referring to my alma mater and Pete Carroll’s former employer, the University of Southern California, but to the United States Code.

The letter went on to demand that Shapeways (and, presumably, Sosa) cease and desist from creating the Left Shark products, send them all copies of the products he has on hand, including marketing materials and such, and…

…Provide a complete accounting for all of the revenue you have received from the sale of the infringing products within twenty (20) days from the date of this letter, which must include copies of all of the sales and shipment records for the sale of this infringing merchandise.

Notwithstanding the last part, I suspect they aren’t really looking to recover any funds realized from the sale of a few shark figurines, they just want Sosa and Shapeways to stop making and selling them so they can proceed with marketing their own Left Shark merchandise while this is still a relevant pop culture reference.

OK, But Is a Shark Costume Really Copyrightable?

Maybe. Copyright protection applies to “pictorial, graphic, or sculptural work(s)” under 17 U.S.C. §102(a)(5). Assuming the costumes were originally created as sketches, the initial drawing would be subject to copyright protection, and later variations thereof would be “derivative works.” One of the rights associated with copyright is the ability to prevent others from creating derivative works without authorization.

However, copyright protection doesn’t apply to “useful articles” – things with an intrinsic utilitarian function. Are costumes useful articles? What if the costume was created without an initial sketch?

Based on a 1991 policy decision from the US Copyright Office, costumes can be copyrightable under certain circumstances. The pictorial, graphic, or sculptural features must be able to be identified separately from, and capable of existing independently of, the utilitarian aspects of the article.

Generally speaking, this means that costumes, like clothing in general, are only rarely entitled to copyright protection. The fine San Diego-based nonprofit advocacy and education group New Media Rights has a good article on the clothing copyright issue (I’d even call it a useful article), so I recommend checking that out. The bottom line for our purposes is:

In the eyes of the law, even…costumes serve the same utilitarian purpose that all other clothing does: to prevent nakedness.

Most likely, the sketches/designs of the Left Shark are protectable, and any unauthorized derivative works thereof (including sculptures) infringe on the rights of Katy Perry (or whoever owns the copyrights in the designs, that’s another question entirely.)

In addition to all this, one could argue that the Left Shark has become a trademark associated with certain goods and services, so there may be a backup in case a copyright claim fails.

In summary, costumes and clothing in general aren’t copyrightable, but you still probably can’t get away with selling Left Shark merchandise – or, at least, any attempt to do so will result in some pretty hefty legal fees.

Thanks to KUSI San Diego’s Lisa Remillard for the inspiration for this post.

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