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.