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Left Shark rose to internet super-stardom by doing his own thing — and now a man selling models of the Super Bowl shark is doing the same, bucking the Katy Perry lawyer who wants him to stop.
L’affaire Left Shark began last week when a lawyer for the “Roar” singer sent 3D printing service Shapeways a cease-and-desist letter, ordering it to stop the sale of miniature models.
In response, model designer Fernando Sosa took to Twitter to complain, and that’s where the situation started to jump the, well, you know.
Following a Twitter chat with my colleague Mathew Ingram and some copyright folks, Sosa obtained the pro bono services of NYU law professor Christopher Sprigman, who was one of the first to publicly pan Perry’s claims.
3D Left Shark is now available once again, along with some new 3D friends. In a blog post announcing his legal pushback, Sosa wrote:
I’m also resuming the sale of this 3D printed full color desk figurine at a different store front Etsy.com/shop/amznfx along with a couple other characters which include a drunk shark, pink drunk shark, and right shark.
So that’s where we stand. Your move, Katy.
Perry’s lawyer, Steve Plinio of Greenberg Traurig, did not immediately reply to a request for comment, but he appears to face an uphill swim.
As Sosa points out to Plinio in a public letter, the copyright claim suffers from two big flaws: 1) Perry doesn’t appear to own any rights in Left Shark; 2) there may not be any intellectual property rights at all, since costumes can’t usually be copyrighted.
Outside IP experts appear to agree. As professor Rebecca Tushnet, a leading authority on copyright and fan culture, explained by email:
A costume is a useful article, and useful articles aren’t copyrightable unless there are elements that are ‘separable’ from the useful article itself. For example, anything necessary for a human to fit in the costume (and dance, badly or well) would not be separable. Some costumes may be copyrighted, and I think it’s possible Left Shark could be one of them, but further factual development would be required.
Parker Higgins, a researcher at the Electronic Frontier Foundation, and co-author of a popular IP newsletter, shared the same sentiment.
“I agree with Sprigman on this one: costumes are considered useful articles, so absent a separable design with a claim to it (like a print, usually) it doesn’t get copyright,” Higgins said by email.
It remains to be seen if the all-powerful NFL, which ferociously protects all aspects of its marketing machine, will now try to step in since it could conceivably overcome the ownership problem, which Tushnet describes as “the real sticking point,” and that would prevent Perry from getting into court in the first place.
While the NFL (or someone else) could try to use trademark law to get around the shortcomings on costume copyright, such a tactic would take time, and the Trademark Office might not grant a mark.
In the meantime, Left Shark’s fame continues to grow, and could soon be beyond the bounds of anyone’s intellectual property control.
According to Tushnet, “fair use might well be a significant issue, given the nature of the meme surrounding Left Shark.”
So for now, in the words of my colleague Signe Brewster, “3D print like lawyers aren’t watching, dance like Left Shark.”