During this year’s Superbowl’s much anticipated halftime show, we had the pleasure of watching celebrity artist Katy Perry perform her popular hits. Among them was “California Gurls,” where the now infamous backup dancer, Left Shark made his debut. While singing with her backup-dancing sharks, the left shark decided to disregard the choreography, creating his own dance moves, and making him an immediate viral sensation.
Naturally, vendors jumped to capitalize on the Left Shark Internet frenzy by selling Left Shark merchandise. One such vendor is a 3D printing artist who created Left Shark figurines and offered them for sale online. Shortly thereafter, Katy Perry’s attorneys sent this artist a cease and desist letter demanding he stop selling the 3D figurines because he was infringing on Katy Perry’s copyright in the Left Shark images and costume.
This cease and desist letter quickly became a hot topic over the Internet. Looking at the arguments made by Perry’s attorneys, two important questions are posed: (1) whether a copyright claim in Left Shark can be asserted and (2) if so, who owns the copyright? First, under U.S. Copyright law, a useful article cannot be copyrightable; however, “conceptually separable” elements are copyrightable. These elements, although not physically separable from the article, are visually separable, like a floral print on a dress where the floral print can be copyrightable, but not the dress itself. Perry’s attorneys conceded that although a shark costume is a useful article that is not copyrightable, they argue the drawings and designs leading to the creation of the costumes are separate creative elements that protect Left Shark from being reproduced. The artist’s attorneys quickly responded with much sarcasm explaining that it’s hard to imagine what element if any is “conceptually separable” in the Left Shark costume. Additionally, they asserted that while the sketches of the Left Shark could be copyrightable, this does not make a costume copyrightable.
Secondly, even if such a copyright claim exists, the question of owns the copyright remains? In their response, the artist’s attorneys stated that it did not appear that Katy Perry owned the copyright, as she was not the author, or costume designer that created the Left Shark costume. While this is a good argument, the costume designer could have signed a work for hire agreement giving her IP rights in her designs to Katy Perry. Additionally, the NFL could own Left Shark as the performance was fixed in a tangible medium of expression via the Superbowl broadcast. Also, there is the possibility that the person wearing the Left Shark costume owns Left Shark. In a recent case not yet decided in the Ninth Circuit, independent performances may be deemed copyrightable, although they would still be subject to work for hire contracts, but again this is not yet been resolved.
Although it has not been decided if Katy Perry does, in fact, own the Left Shark copyright, these types of legal arguments bring famous artists, like Perry, bad publicity. Publicity that should have been considered prior to sending this, now viral, letter.
ALG is staying well-informed of these and other Internet law and Intellectual Property law related matters to make sure we can properly counsel our clients. If you have any questions regarding this or any other Internet law or business law related matters, please contact Antoine Law Group, APC.
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