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What happens when the unstoppable force of an internet meme meets the immovable object of a celebrity’s lawyers? We could find out as Katy Perry lawyers try anew to claim the flash-in-the-pan phenomenon known as Left Shark.
In the latest turn of fate for Left Shark, who came to fame for his drunken dance during the Super Bowl, Perry’s lawyers have filed for trademarks on “left shark,” “right shark,” “drunk shark” and, inexplicably, “basking shark.”
The new applications come after the lawyers fell on their faces trying to assert copyright claims against Shapeways, a small 3D printing company where model designer Fernando Sosa had been selling a replica of Left Shark.
The problem, as copyright scholars pointed out, was that costumes can’t really be copyrighted and, in any case, there was no evidence the singer owned rights to Left Shark in the first place.
Hence, the new trademark claims. Unlike copyright, which covers artistic works, trademarks are intended to protect brands and denote original ownership. There’s more than one way to own a shark, goes the thinking of Perry’s lawyers.
Alas, they appear set to go 0-for-2 in their intellectual property adventures since, in the words of lawyer Roberto Ledesma, it’s not easy to own an an internet meme.
“It arrived out of something that came out of the internet. What is her claim to ownership of the mark?” said Ledesma, a former trademark examiner, by phone.
He said the Trademark Office may reject the marks on “failure to function” grounds — meaning it doesn’t do what a trademark is supposed to do, which is point to a source of origin. Ledesma says the issue is novel, but similar problems have arisen when people have tried to claim rallying cries like”Boston Strong” or “Je Suis Charlie.”
That doesn’t mean, however, that Perry’s lawyers can’t prevail. Ledesma points out that they may simply use the trademark applications (even if they are doomed) to bully companies like Shapeways and Etsy where artists to sell their wares.
Perhaps it is time for Perry to step in and put her lawyers back in their tanks, and give the money she has been spending on them to a shark protection foundation.
This story was updated at 9:45am ET to correct a misspelling of Roberto Ledesma’s name. Also an earlier version incorrectly suggested that Ledesma said it is not possible to own an internet meme.