Yesterday news broke that Katy Perry* (among other things, the intended star of the 2015 Super Bowl Halftime Show) demanded that the 3D printing website Shapeways stop selling a model of Left Shark (perhaps the actual star of the Super Bowl Halftime Show). The letter to Shapeways came on fancy letterhead and was full of scary words, but is it backed up by any law?
Quick Background (Costumes and Copyright)
In order to start to answer that question, there are two things that are worth keeping in mind. First, although the letter first broadly references a generic “intellectual property depicted or embodied in connection with the shark images and costumes,” later on it references a specific section of copyright law. In light of that, let’s assume that Katy Perry (and although the letter comes from Katy Perry’s lawyers, they are her representatives so I’m just going to refer to them collectively as Katy Perry because it is more fun) is claiming to have a copyright in the shark costume.
The problem with this is that courts have generally found that copyright does not protect costumes (even fairly creative ones). Essentially, courts have lumped costumes in with other kinds of clothing and considered them all the kind of “useful article” that is beyond the scope of copyright protection. If you are curious, that use in this articles is things like “preventing you from being naked” and “keeping you warm.”
There are some legal theories that could be put forward to try and get copyright protection for a specific costume, but they mostly come into play when there are elements of a costume that could exist independently of the costume or when the costume is tied to a character developed in a book, movie, or play. It would probably be a stretch to put Left Shark into either of these categories.
An addition note is that even if the Left Shark costume is protected by copyright, that doesn’t automatically make Katy Perry the owner of that copyright. But let’s set that aside for now.
Quick Background (DMCA)
The second thing to keep in mind (and I promise I’ll bring all of this home) has to do with the Digital Millennium Copyright Act, or the DMCA for short. There are a number of parts of the DMCA (click here to learn about the part that might prevent you from using your own filament in a 3D printer, ripping your own DVD, or accessing data from medical devices implanted in your chest), but one of them protects websites that host content for people – websites like Shapeways, YouTube, and Facebook – from copyright liability.
Websites get this protection as long as they comply with a specific set of requirements, and are under no obligation to take down infringing content as long as they are in compliance. One of these requirements is to takedown copyrighted content if they get a request from the copyright holder – this request is sometimes called a DMCA takedown request. However, that request includes a requirement that the person sending it affirm under penalty of perjury that they are the owner of the copyright (or their designated agent).
Background Over – Let’s Get On With It
With those two things in mind, let’s look at Katy Perry’s letter. The most important thing about the letter is probably what it is not – the letter is not a real DMCA takedown notice. For one thing, it is missing a link to the actual allegedly infringing work. Perhaps more importantly, it is missing a statement – remember this statement has to be made under penalty of perjury – that the person sending the notice actually owns a copyright in the work being discussed.
Instead, the letter is presented as a “cease and desist” letter, a kind of letter sometimes described by lawyers as a “nastygram.” In some – although not all – cases nastygrams are designed to intimidate the recipient into compliance (often through the use of fancy letterhead and scary language) even if the sender does not actually have the legal power to back up the threats.
It is hard to tell if this letter falls into that category, but there are some interesting clues. First, there is the question of the costume copyrightability at all. It is not clear that anyone owns a copyright in Left Shark. And if no one owns a copyright in Left Shark, no one can demand that a Left Shark model get taken down from Shapeways. Second, there is the question of who would own the copyright in Left Shark if it were to exist. It is certainly possible that Katy Perry was farsighed enough to demand ownership of the copyrights of every costume in the halftime show, but it isn’t automatic.
And third is the choice of a nastygram over a real DMCA takedown notice. Katy Perry has fancy lawyers. They know that a website like Shapeways is immune from copyright liability unless they receive a properly formatted DMCA notice. But they also know that a property formatted DMCA notice would require an oath that Katy Perry actually owned an existent copyright in Left Shark. If they were worried about the truth of either of those things, they might have hoped that a nastygram would give them the outcome they were looking for without exposing them to perjury liability.
Or maybe they just prefer sending nastygrams to DMCA notices. Hopefully Katy Perry will explain what part of Left Shark she owns so we can clear all of this up. Until then, color me a skeptic.
*I admit that I’m not familiar enough with the Katy Perry catalog to artfully weave Katy Perry puns and references into this blog post. You are well within your rights as a reader to expect them, and I’m sorry to disappoint you.