Lawyers for Katy Perry sent a cease-and-desist letter to a 3D printing company selling Left Shark, the uncoordinated costumed character who danced next to the singer during the Super Bowl.
. . .Above the Law has a portion of the cease and desist letter here.
Shapeways complied and removed Left Shark from its catalog. According to its website, users can design a product with the help of a 3D printing app and upload it to Shapeways, which produces the product and sells it.
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[The designer of the 3D printing model, Fernando] Sosa told CNBC he offered to pay royalties to market Left Shark, but he was turned down. Sosa has since placed his design on Thingiverse, which requires the downloader to do the 3D printing, according to Gigaom. Sosa is offering the download for free.
Here's a video of Katy Perry's Superbowl performance where Left Shark made its appearance. The poor dancing that rocketed the shark to international renown begins at around 1:25:
Staci Zaretsky at Above the Law comments on this story as well. She notes that New York University Law professor, Christopher Sprigman, takes the position that Left Shark is a useful article and therefore cannot be copyrighted.
Going to Twitter, it appears that this story has developed further since Above the Law's initial coverage. Sprigman posted a link to this announcement which suggests that the US Copyright Office has taken the position that costumes are useful articles and therefore not subject to copyright protection.
Useful articles are design aspects of an item that cannot be separated from a utilitarian function that the item performs. As the Second Circuit Court of Appeals noted in Chosun International, Inc. v. Chrisha Creations, Ltd., quoting 17 U.S.C. § 101:
"[T]he design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.") (emphasis added). For this reason, one may not copyright the general shape of a lamp, because its overall shape contributes to its ability to illuminate the reaches of a room. But one can copyright the fanciful designs imprinted on, or carved into, the lamp's base, so long as those designs are unrelated to the lamp's utilitarian function as a device used to combat darkness.But things may get complicated when costumes are involved. As this post from Foley & Hoag's Trademark and Copyright Law Blog notes, while a costume may indeed be a useful article, the Chosun court went on to state that design elements of the costume may be separated from its function as a costume and subject to copyright. In the words of the court, parts of the costume that "invoke in the viewer a concept separate from that of the costume's 'clothing' function," the addition of which is "not motivated by a desire to enhance the costume's functionality qua clothing," may indeed be subject to copyright protection. (Chosun, 413 F.3d at 329-30).
This abstract, vaguely worded test practically begs eager intellectual property lawyers to file lawsuits.
Fortunately for Fernando Sosa, the designer of the 3D printed Left Shark, it looks like Sprigman is taking his views beyond the world of tweets and commentary. From Sosa's Twitter account:
meet my lawyer!! Christopher Sprigman Prof. New York University School of Law #leftshark #3Dleftshark #freeleftshark pic.twitter.com/itt5Sf1a48
— Political Sculptor (@politicalsculpt) February 6, 2015
Sosa may indeed need legal representation, since he has decided to share his Left Shark design on Thingiverse. While he is no longer selling the 3D printed Left Sharks, the cease-and-desist letter referred to Sosa violating copyright by using "shark images," as well as "shark costumes" in developing his 3D printed sculptures.
While Sosa may no longer be producing the sculptures himself, Katy Perry's claim over the images would likely extend to Sosa's digital design for the 3D printed Left Sharks. If Katy Perry continues to pursue her claim, there may end up being some interesting litigation over whether a costume can be copyrighted.