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.

The Shapeways API: Why it’s important

Just in time for SXSW this week, Shapeways debuted their new API, which allows developers to build consumer facing applications that can access the Shapeways printing network and marketplace.
Why is this important? First and foremost, you need to understand that Shapeways does its biggest chunk of business directly with creators, people who upload their own 3D printed designs and are savvy with 3D printer software. However, the much bigger opportunity is in a broader audience, those who want access to 3D printed creations but don’t know or necessarily want to know how to use 3D design and CAD software.
That’s where the API comes in. In my opinion, the gateway to mass-market 3D device creation is through software, much more so than lower cost and easier to use 3D printers. While I’ve stated that low-cost 3D printers for consumers will eventually arrive, the services are much more accessible and affordable today.
So what does the API have to do with this? Well, by making an API available that accesses the Shapeways printing network (with controls over materials, etc) and the marketplace, savvy app developers can create offerings that make 3D printed creations even more accessible. Combine in the fact that Shapeways allows you to build your own storefront, the Shapeways API will help usher in the coming wave of “Shapeways millionaires” which CEO Peter Weijmarshausen talked to me about recently.
What are some future possible outputs? Imagine, for example, Rovio putting a feature in the next Angry Birds app that allows  users to create an Angry Bird 3D model, with a handful of different features or variations.  A menu of these options are preselected and built into the app, and the API quickly accesses all the necessary information and delivers it to the fulfillment engine of the Shapeways marketplace.
Today you already see this on a small scale with MixeeMe. I think you’ll see a whole bunch more interesting uses of Shapeways printing services and marketplace enabled through their new API over the next year.

Makerbot ships Replicator 2X, but 3D printing mass market is still a few years off

Looking for a new tech toy? Well how about a 3D printer?

After all, you can buy the latest model from Makerbot, who today announced the second model of their fourth generation 3D printer, the dual extrusion Replicator 2X (dual extrusion means that it can print two materials simultaneously, which is a big step towards more complex modeling).

But before you buy that cool new gadget, you might just want to look at the sticker price first: $2799.  The single extrusion Replicator 2 model is cheaper, but not by much: $2199.

So while everyone, including the President, sees 3D printing as the future of, well, everything, I’d suggest that pricing is one of the main reasons 3D printing is still a few years off from becoming a mass market technology.

What are the other reasons? The most obvious is technical difficulty. While low cost 3D printers like that from Printrbot can be had for a few hundred bucks, most of the low-cost models require some assembly, and all models, including those which are fully assembled (like the Makerbot), still require some technical understanding such as how to use 3D modeling software.

In reality, I think most consumers first exposure with 3D printing won’t be through buying their own personal 3D printer for the home, but instead through an online services business. Companies like Shapeways and Materialise are on the front end of a rapidly growing 3D printing services online, where artists and creators can use 3D printing capacity from these companies to create products using their own designs, and others can use designs from others or simply buy 3D printed products like jewelry or toys.

The CEO of Shapeway, Peter Weijmarshausen, told me the company is likely to see its first “Shapeways millionaire” in the next year or two, from the batch of about 8 thousand or so entrepreneurs who have created storefronts on Shapeways marketplace.

I have a feeling the first 3D printing services millionaire will be the first of many.

Will 3-D printing lead to a new wave of piracy?

It’s becoming ever easier to copy and share not just computer files but physical objects too. An Economist article reports that the technology could inaugurate a technological revolution — but also give rise to massive new piracy problems.

The future will be printed in 3-D

The house of the future will be outfitted with hundreds of products created on 3-D printers, everything from jewelry and home decor items to eventually more complex items like furniture or digital devices. It’s coming sooner than people think, said Peter Weijmarshausen, the CEO of Shapeways.