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Attorneys

The Left Shark, Katy Perry and Copyright Chum

February 13 2015

By Scott Hervey

What do you get when you take one shark costume, add a confused backup dancer, throw in Katy Perry and the Super Bowl halftime show and top it off with a satirical artist with a 3D printer? First the backstory.

The “Left Shark” in question is a Katy Perry backup dancer who was dressed in a shark costume for Perry’s beach-themed number “Teenage Dream” during the Super Bowl halftime show. The Left Shark (the dancer to Perry’s right) seemed to have forgotten his dance moves — how else could you explain the flailing of fins. The Internet took notice; so did 3D sculptor Fernando Soza.

Soza’s satirical barbs are usually reserved for the politico set, such as Governor Chris Christie wearing a traffic cone and carrying a sign that reads “traffic study”. However, this time he took aim at the Left Shark and created a 3D printed sculpture of one regular shark, one pink shark and one holding a beer bottle.

So what do you get when you take one shark costume, add a confused backup dancer, throw in Katy Perry and the Super Bowl halftime show and top it off with a satirical artist with a 3D printer? You have the makings for a copyright dispute, of course. What else could there be?

Perry’s lawyers sent Soza a cease and desist letter alleging that the shark sculpture infringed certain “intellectual property depicted or embodied in connection with the shark images and costumes portrayed and used” in Perry’s Super Bowl halftime show. The letter insisted that Soza’s sale of the sculpture infringed Perry’s “copyrighted work” and demanded that Soza “cease and desist from all further commercial use or exploitation of unauthorized products bearing the…copyrighted images.”

Perry’s lawyers almost accomplished their goal; Soza was ready to cut bait until an NYU law professor offered to represent him. Soza’s reply challenged Perry’s claim on two grounds: the first was on ownership. Soza’s lawyer quoted a press interview Perry gave wherein she said that she had to go through layers of bureaucracy for approval of, among other things, her costumes. While interesting, the sole fact that Perry had to get NFL approval of her show costumes would not divest her of whatever authorship rights she may otherwise have in the costume. The other ground was on the copyrightability of the costume itself.

Copyright Registrability of Costumes

The United States Copyright Office has generally refused to register claims to copyright costume design on the ground that costumes are useful articles that ordinarily contain no artistic authorship separable from their overall utilitarian shape. However, where a costume design contains a separable pictorial or sculptural authorship, copyright protection is available. The “separable authorship” means that the portion of the costume claimed to be protectable must be physically separable (the work can be physically removed from the costume), or conceptually separable (the work is independently recognizable and capable of existence apart from the overall utilitarian shape of the useful article).

An example of where a costume contains physically separable elements is where the costume contains fanciful elements not related to the functionality of the costume. For example, in the case of Chosun International, Inc. v. Chrisha Creations, Ltd., 214 F.3d 324 (2005), the court determined that the heads of Chosun’s plush sculpted animal costumes are separable from the overall design of the costume, and hence eligible for protection under the Copyright Act. Because the costume “heads” are physically separable from the overall costume, in that they could be removed from the costume without adversely impacting the wearer’s ability to cover his or her body, copyright protection would be available.

An example of where a costume contains conceptually separable works is where the costume incorporates a protectable character. For example, The U.S. District Court for the Central District of California handed a big victory to Warner Bros. when it ruled that Gotham Garage violated Warner Bros.’ intellectual property rights in the iconic Batmobile when Gotham Garage manufactured a car based on the 1966 and 1989 Batmobile. Although an automobile is a useful article, the court held that the Batmobile was a protectable character and conceptually separable from the useful article. Generally, characters that are sufficiently delineated or “constitute the story being told” are entitled to receive protection apart from the work in which the character appears. However, where the character is “only a chessman in the game of telling the story” or is a stock character, no protection is warranted.

Is the Left Shark costume protectable under copyright law? In order for the Left Shark costume to be protectable under the copyright law, Perry’s team would have to claim that a portion of the costume is physically separable or conceptually separable. In Soza’s reply letter, he essentially challenged Perry’s lawyer to identify the elements of the shark costume that are protectable. Perry’s team has yet to respond. Soza, it is reported, continues to sell the Left Shark sculptures. Ernest Hemingway’s quote from “The Old Man and the Sea” comes to mind: “‘Fish,’ he said softly, aloud, ‘I’ll stay with you until I am dead.’” (Or at least until sales go flat.)