Saturday, February 14, 2015

Does Katy Perry Have a Copyright Interest in the Infamous “Left Shark” in her Super Bowl Halftime Show?

References to “Left Shark” flooded social media after Katy Perry’s Super Bowl halftime show as viewers were puzzled by the left shark’s unique dance moves. As “Left Shark” has become somewhat of an overnight phenomenon, Katy Perry’s legal team is aggressively asserting its ownership of the “Left Shark’s” likeness.  

Fernando Sosa uses his 3-D printer to create sculptures of political figures and sell them on his website. After the Super Bowl, Sosa created and printed a shark figurine modeled after the “Left Shark,” which he sold on his website. Shortly thereafter, Sosa received a a cease and desist letter from Perry’s legal team demanding that he stop manufacturing, distributing, selling, and marketing the figurines as his actions were infringing Perry’s exclusive rights to reproduce, display, and distribute the “Left Shark’s” likeness.

Given Katy Perry is attempting to assert a copyright interest in a shark costume, it is questionable whether she would succeed on her claim of copyright infringement in court. The United States Copyright Office has taken the position that costumes are useful articles and are generally not afforded copyright protection unless there are separate artistic features that do not contribute to the utilitarian nature of the costume, which can receive copyright protection. Presently, the standard for identifying separable artistic elements is ill-defined, but the Copyright Office has stated that “fanciful costumes” can obtain copyright protection if they contain pictorial or sculptural elements that are independently recognizable and do not add to the utilitarian purpose of the costume. In the present case, it appears that the “Left Shark” costume is a useful article, and there do not appear to be any unique artistic or pictorial elements that materially distinguish the “Left Shark” costume from any other standard shark costume presently on the market.  

Monday, February 9, 2015

Cybersecurity Attack on Anthem Inc.’s Networks Compromises Customers’ and Employees’ Personal Information

         Health insurer, Anthem, Inc., is the latest organization to become a victim of a cyberattack. On January 29, 2015, Anthem, Inc., which is the parent company of Blue Cross and Blue Shield, Connecticut’s largest health insurer, determined that hackers had invaded its network and obtained the personal information of more than 80 million customers and employees. Based on preliminary  reports, it is believed that the hackers obtained customers’ and employees’ names, addresses, birth dates, Social Security numbers, email addresses, employment information, income data, and medical identification numbers, but the hackers did not obtain medical and financial information.

          In Connecticut, the breach could impact more than 1 million customers. Connecticut Governor Dannel Malloy has instructed residents to monitor all financial accounts because individuals may use the obtained information to open new lines of credit, open new credit cards, and steal tax refunds. In addition, experts have cautioned that hackers may use the combination of an individual’s Social Security number and medical information to perpetuate identify theft and email phishing scams, and to file false insurance claims.

          It has been reported that the compromised information was particularly vulnerable because Anthem did not encrypt the data. The Health Insurance Portability and Accountability Act (HIPAA) mandates that covered entities and health plans, such as health insurers, encrypt electronically protected health information. Specifically, the HIPAA Security Rule establishes administrative, technical, and physical safeguards that entities must use to protect the confidentiality and security of individuals’ electronic protected health information. Given that encryption can be a powerful tool in thwarting hackers’ infiltration attempts, it is worthwhile for businesses to encrypt confidential personal information even if businesses are not legally mandated to do so.