Left Shark, the uncontested star of Katy Perry’s Super bowl Halftime performance, swam into our hearts and Twitter feeds with its endearingly flubbed dance moves. The social media firestorm following the performance quickly made Left Shark a pop culture icon, spurring fans to produce artwork and other merchandise for the online masses. However, Fernando Sosa learned firsthand that Perry’s team was not on board with this development. After posting plans for a 3D printed version of Left Shark on Shapeways, Perry’s team sent a cease and desist letter to the 3D printing website ordering it to remove the content “infringing” on Perry’s copyright and intellectual property rights. The ensuing legal debate, however, has raised the question of whether Left Shark is even copyrightable in the first place.
The U.S. Copyright Office has generally held costumes to be useful articles and, therefore, not copyrightable unless the shape of the product contains an element that is either physically or conceptually separable from the utilitarian aspects of the article. This is exactly the argument New York University School of Law Professor Christopher Sprigman made in a letter to Perry’s lawyers after Sosa retained him. Sprigman asked Perry’s counsel to provide a basis for both the copyrightability of Left Shark and how Perry owns that copyright. In response, Perry’s counsel argued that Perry’s team sketched several drawings of the costume and that those drawings and the aspects of them incorporated into the final costume are copyrightable as they are conceptually separable elements of the costume design. Furthermore, it was argued that Perry owns all of the sketches and elements of them, than any commercial value attached to Left Shark comes from its association with Perry, and that Sosa could obtain a license from Perry to sell the 3D printed Left Sharks.
Sprigman responded that while the drawings of Left Shark are copyrightable, the costume is not. As Sosa has not seen the drawings sketched by Perry’s team, there is no way he could have copied those drawings. Furthermore, Sprigman asked Perry’s counsel to define which elements of the shark costume are conceptually separable and, therefore, copyrightable. Parts of the costume such as the legs, he argues, are integral to the costume’s function and not amenable to copyright. Sprigman also points out that since Perry herself did not design the Left Shark costume, written records confirming the transfer of ownership to Perry are required subject to the Copyright Act.
Sprigman’s most profound argument comes in his attack on the suggestion that Left Shark’s commercial value comes from its association with Perry. Left Shark received its overwhelming popularity and relevance from subsequent publicity and discussion on the Internet. Even the name “Left Shark” originated on the web and not in Perry’s camp. In Sprigman’s words, Left Shark “isn’t really about Katy Perry.” Left Shark is about the Internet giving Left Shark value.
To date, Sosa’s 3D printed Left Shark and related merchandise are available on Etsy and, once again, Shapeways. However, it seems that Perry’s camp has not let this one go. In a trademark application dated February 6, 2015, Perry’s counsel used a photo of Sosa’s 3D printed Left Shark. Although the application was abandoned on February 11, 2015, it seems that even Perry’s team is confused about who really owns Left Shark.