Katy Perry lawyers try again, file trademark claim for Left Shark

What happens when the unstoppable force of an internet meme meets the immovable object of a celebrity’s lawyers? We could find out as Katy Perry lawyers try anew to claim the flash-in-the-pan phenomenon known as Left Shark.

In the latest turn of fate for Left Shark, who came to fame for his drunken dance during the Super Bowl, Perry’s lawyers have filed for trademarks on “left shark,” “right shark,” “drunk shark” and, inexplicably, “basking shark.”

The new applications come after the lawyers fell on their faces trying to assert copyright claims against Shapeways, a small 3D printing company where model designer Fernando Sosa had been selling a replica of Left Shark.

The problem, as copyright scholars pointed out, was that costumes can’t really be copyrighted and, in any case, there was no evidence the singer owned rights to Left Shark in the first place.

Hence, the new trademark claims. Unlike copyright, which covers artistic works, trademarks are intended to protect brands and denote original ownership. There’s more than one way to own a shark, goes the thinking of Perry’s lawyers.

Left Shark, as it appeared Thursday on Thingiverse.

Left Shark, as it appeared Thursday on Thingiverse.

Alas, they appear set to go 0-for-2 in their intellectual property adventures since, in the words of lawyer Roberto Ledesma, it’s not easy to own an an internet meme.

“It arrived out of something that came out of the internet. What is her claim to ownership of the mark?” said Ledesma, a former trademark examiner, by phone.

He said the Trademark Office may reject the marks on “failure to function” grounds — meaning it doesn’t do what a trademark is supposed to do, which is point to a source of origin. Ledesma says the issue is novel, but similar problems have arisen when people have tried to claim rallying cries like”Boston Strong” or “Je Suis Charlie.”

That doesn’t mean, however, that Perry’s lawyers can’t prevail. Ledesma points out that they may simply use the trademark applications (even if they are doomed) to bully companies like Shapeways and Etsy where artists to sell their wares.

Perhaps it is time for Perry to step in and put her lawyers back in their tanks, and give the money she has been spending on them to a shark protection foundation.

This story was updated at 9:45am ET to correct a misspelling of Roberto Ledesma’s name. Also an earlier version incorrectly suggested that Ledesma said it is not possible to own an internet meme.

Left Shark printer chomps on Katy Perry’s copyright claim

Left Shark rose to internet super-stardom by doing his own thing — and now a man selling models of the Super Bowl shark is doing the same, bucking the Katy Perry lawyer who wants him to stop.

L’affaire Left Shark began last week when a lawyer for the “Roar” singer sent 3D printing service Shapeways a cease-and-desist letter, ordering it to stop the sale of miniature models.

In response, model designer Fernando Sosa took to Twitter to complain, and that’s where the situation started to jump the, well, you know.

Following a Twitter chat with my colleague Mathew Ingram and some copyright folks, Sosa obtained the pro bono services of NYU law professor Christopher Sprigman, who was one of the first to publicly pan Perry’s claims.

3D Left Shark is now available once again, along with some new 3D friends. In a blog post announcing his legal pushback, Sosa wrote:

I’m also resuming the sale of this 3D printed full color desk figurine at a different store front Etsy.com/shop/amznfx along with a couple other characters which include a drunk shark, pink drunk shark, and right shark.

So that’s where we stand. Your move, Katy.

Perry’s lawyer, Steve Plinio of Greenberg Traurig, did not immediately reply to a request for comment, but he appears to face an uphill swim.

As Sosa points out to Plinio in a public letter, the copyright claim suffers from two big flaws: 1) Perry doesn’t appear to own any rights in Left Shark; 2) there may not be any intellectual property rights at all, since costumes can’t usually be copyrighted.

Outside IP experts appear to agree. As professor Rebecca Tushnet, a leading authority on copyright and fan culture, explained by email:

A costume is a useful article, and useful articles aren’t copyrightable unless there are elements that are ‘separable’ from the useful article itself.  For example, anything necessary for a human to fit in the costume (and dance, badly or well) would not be separable. Some costumes may be copyrighted, and I think it’s possible Left Shark could be one of them, but further factual development would be required.

Parker Higgins, a researcher at the Electronic Frontier Foundation, and co-author of a popular IP newsletter, shared the same sentiment.

“I agree with Sprigman on this one: costumes are considered useful articles, so absent a separable design with a claim to it (like a print, usually) it doesn’t get copyright,” Higgins said by email.

It remains to be seen if the all-powerful NFL, which ferociously protects all aspects of its marketing machine, will now try to step in since it could conceivably overcome the ownership problem, which Tushnet describes as “the real sticking point,” and that would prevent Perry from getting into court in the first place.

While the NFL (or someone else) could try to use trademark law to get around the shortcomings on costume copyright, such a tactic would take time, and the Trademark Office might not grant a mark.

In the meantime, Left Shark’s fame continues to grow, and could soon be beyond the bounds of anyone’s intellectual property control.

According to Tushnet, “fair use might well be a significant issue, given the nature of the meme surrounding Left Shark.”

So for now, in the words of my colleague Signe Brewster, “3D print like lawyers aren’t watching, dance like Left Shark.”

Left Shark, as it appeared Thursday on Thingiverse.

Left Shark, as it appeared Thursday on Thingiverse.

Katy Perry’s lawyers demand takedown of 3D printable Left Shark

While the nation identifies with the Super Bowl’s insta-star Left Shark, Katy Perry’s lawyers are apparently more the Right Shark type. They issued a cease and desist letter (see below) to on-demand 3D printing service Shapeways on Tuesday, demanding a 3D model depicting Left Shark be taken down.

Shapeways complied, and Fernando Sosa, the designer behind the model, has now posted it on Thingiverse. Unlike on Shapeways, Thingiverse models are free and must be 3D printed by the downloader.

Left Shark, as it appeared Thursday on Thingiverse.

Left Shark, as it appeared Thursday on Thingiverse.

Shapeways confirmed the letter and takedown, stating:

It’s a shame because we love our community and always want to be able to support their designs. That’s part of the reason why our work with Hasbro is so fun! It’s allowing fans to create products truly inspired by the things they personally enjoy. We know these things can happen when you have a lot of user-generated content, but hopefully more brands (and celebrities!) will take note and want to work together with fans to create amazing products!

NYU law professor Christopher Sprigman tweeted that he believes Left Shark is not copyrightable because it qualifies as a “useful article,” which would mean it is not protected the same way as an artistic work.

Both Thingiverse and Shapeways are home to scores of ostensibly copyrighted models, including memes. While it’s hard to say who has the rights to sad Keanu or doge, Pokemon figurines are a little more black and white. Both sites have received takedown requests in the past, but designs tend to stay up until a letter arrives.

The Joseph Ducreux, AKA "Disregard females, acquire currency", meme, 3D printed by Shapeways.

The Joseph Ducreux, AKA “Disregard females, acquire currency”, meme, 3D printed by Shapeways.

IP law finds itself in an unchartered space with the rise of 3D printing, though new models are beginning to emerge. Shapeways has entered into partnerships with a few companies like Hasbro that allow anyone to model their characters, and then funnel some of the sale proceeds back to the copyright holder.

If you absolutely must get your hands on a 3D printed Left Shark, Sosa is urging people to download it from Thingiverse before the site receives a similar letter.

Left Shark rose to fame during the Super Bowl halftime show Sunday. Katy Perry sang “Teenage Dream” among dancing beach balls, trees and two sharks. While Right Shark had the dance down, Left Shark had to improvise a bit. But that didn’t stop him from dancing with everything his little shark heart had to give.

3D print like lawyers aren’t watching, dance like Left Shark.

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This story was updated at 2:15 p.m. PT with more details on copyright and Left Shark.