The Super Bowl is popular for a variety of reasons – football, commercials, and the halftime show. What was most talked about after this year’s halftime show may not have been Missy Elliott’s surprise appearance, but Katy Perry’s fantastically awkward, uncoordinated, backup-dancing shark.
“Left Shark” became nothing short of an overnight sensation. It was instantly the topic of Internet conversations, memes, and even landed its own satirical story in The New Yorker. Unfortunately, this fun was short-lived once a vendor, Fernando Sosa, was served a cease-and-desist letter from Perry’s legal representatives, demanding he stop selling figurines of Left Shark. The letter asserted that the sale and display of Left Shark figurines “infringe on [Perry’s] exclusive rights in numerous ways,” and demanded he immediately stop selling the figurine, turn over all figurines in his possession, and provide a complete accounting record of the products.
Sosa is an Orlando-based designer who sells pop-culture and political-themed items through Shapeways, an on-demand 3D printing company. Sosa, like many others, sought to capitalize on Left Shark’s fifteen-minutes of fame and produced Left Shark figurines that he was selling online for just $24.99 (now $26.99). Initially after receiving Perry’s letter, Sosa planned to abide by the order and stated that,
“it looks like dictators and world leaders like Putin and Kim Jong Un or Chris Christie are much easier to deal with.”
He even told CNBC that he offered to pay royalties but was refused. However, after retaining Professor Christopher Jon Sprigman from New York University School of Law, Sosa decided to fire back at Perry’s team.
Sprigman’s response to Perry’s cease-and-desist letter questioned the basis with which Perry was asserting her copyright ownership. Sprigman began by questioning the notion that the costume was even copyrightable because of federal court decisions holding that generally, costumes are not subject to copyrights. Next, Sprigman attacked the basis with which Perry owned the alleged copyright to the costume, citing Perry’s own statements in an interview about the then-upcoming Super Bowl halftime performance. In the interview, Perry contrasted her typical shows where she is in charge to the NFL-regulated halftime performance where she stated, “I have to report to somebody. So I am no longer the boss; I have to relinquish that control.”
Unless Perry drops her claims or Sosa obeys the cease-and-desist letter, we’re at a standstill and have some copyright issues to resolve.
The first issue is whether Left Shark’s costume is copyrightable. Sprigman’s letter asserts that it likely won’t be, but Santa Clara law professor and copyright expert Eric Goldman isn’t as convinced. In order for a work to be copyrighted it must be an expression, mere ideas are not copyrightable. The key to this expression/idea distinction here is whether the work is distinctive. If Left Shark is so popular as to have sparked such a following, Goldman points to that as a distinctive quality sufficient for copyrightability.
If Left Shark’s costume is copyrightable, the next issue is who owns the copyright? This raises issues of who designed it and whether they designed it as a work for hire. Or, if the design was based off of something already in the public domain, it may not be Perry’s right to enforce a copyright at all.
Finally, Goldman noted that this case brings up a novel issue of whether a 3D printing company can be held liable for the infringement of its users. Current federal law provides a safe harbor for websites that provide services for users to publish their own works, such as YouTube. But here the products are physical rather than virtual, so could (and should) such providers be held liable to infringing acts of their users?
We’re all lucky enough to have enjoyed the Left Shark’s Super Bowl XLIX dancing and the entertainment will surely continue throughout this legal battle over copyrights.