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.
0 thoughts on “Why Katy Perry’s Lawyers Just Jumped The Shark”
unfortunately, it looks like shapeways has nuked the left shark models.
It’s up on Thingiverse for free now: http://www.thingiverse.com/thing:667127
Cue…”I’m a SHARK!, I’m a SHARK!…”
(you can fill in the rest)
Perfect response to that letter.
Why don’t sharks attack lawyers?
They are claiming the image of the shark that appeared on TV is protected, not the “costume”, per se. As for producing an affidavit swearing the image infringes, this seems pretty cut & dry, and lawyers are as lazy as the next guys :)
The person who took a picture of the shark would own a copyright in the picture, but not in the subject of the picture.
Kind of. Disney owns the subject of Mickey Mouse, but not the depiction of all mice. Likewise, Katy Perry owns the subject of this shark, but not the depiction of all sharks. This is straightforward, which is why the company in question here, Shapeways, took it down right away.
But I am highly skeptical that Katy Perry owns the expression of this shark because the costume is not copyrightable subject matter. Therefore, unlike Mickey Mouse, there is no underlying copyrighted work at play here.
I think you are wise to be skeptical, as this is not an everyday dispute. But imagine, for example, if the head of Nintendo got dressed up and sang a halftime show, and two dancers in Mario and Luigi costumes appeared onstage. Mario and Luigi would still be copyrighted subject matter, and Shapeways could not put up a model, even though it would be a model of costumes.
The author of this article might have missed the bigger issue as to what Katy Perry’s lawyers were complaining about. They were not complaining about the costume, per se, they were troubled by the copying of the shark character itself, which is copyrighted by Katy Perry.
Not an easy concept to grasp, at first, but at the end of the day it’s simple if you think of the shark guy as just another character such as Mario or Mickey Mouse!
If Katy Perry had created a work that included the shark in some way other than as a costume, then that would be cut and dried (as is the case with Mario and Luigi). However, since that is not the case it is unlikely that Katy Perry owns the copyright.
Remember, like the old-old school characters on Nintendo’s copyrighted playing cards, it doesn’t have to be a famous character or published everywhere to be someone’s intellectual work. Just as you own a copyright to anything original you write or draw, so does Katy Perry. In any event, the character of Katy’s shark was “published” when the NFL aired it on TV, just like Mario is published when Nintendo releases a video game or when Disney releases a movie. That’s why the NFL gives those long boring speeches at the end of games saying how everything you just saw was copyright 2015 by the NFL and may not be resold. That includes images of the players themselves, and the “costumes” they wear, aka their uniforms, believe it or not!
What inside information do you have that tells you that that is not the case? The shark figure was similar in style to the ice cream and pizza figures in her latest video and who also appeared in the show. For all you know she has pre-existing style sheets on all these characters. Heck the shark character may figure in her next video which simply hasn’t been released yet. Either way her graphic designer has probably already provided her with all the designs.
You are getting copyright and trademark mixed up. The characters of Mario and Luigi are not copyrighted, they’re trademarked. The works that they are featured in are copyrighted.
No, I’m correct. Mario and Luigi are certainly copyrighted characters. Judge Learned Hand wrote the famous opinion in the 1920’s on this, explaining that a well-developed literary character was copyrighted in and of herself.
Even without that protection the DMCA covers other types of intellectual property, not just copyright. In addition, if I made aan unauthorized model of Tom Brady’s face from a still image of the broadcast, the NFL would likewise have a case against me for copyright infringement.
It’s complex sometimes but the point is always to reward the people who put in the hard work!
One can argue over whether a character whose internal life hasn’t been explored much further than telling us “It’s-a me, Mario!” is well-developed, but it would be hard to keep a straight face while claiming that Left Shark is a well-developed character.
If you took the photo of Tom Brady yourself (and not for hire) you own the copyright to that image and can make a model or needlepoint or ice sculpture based on it. You would only run into trouble when you tried to sell those things — because of trademark.
Well developed does not mean what you think it means. It means that there is a good description of it, not that is has a years long back story. The opinion is great, you should read it and also you should learn about copyright law! It’s interesting.
So I can crank out Mickey Mouse figurines as long as they’re figurines based on the Mickey Mouse costume and not a particular drawing? Cool story bro.
This is interesting, and the knee-jerk reaction from the lawyers was probably due to that 3D model on Shapeways being the first. Had Shapeways said, “No, we aren’t going to take this model down” then we would have seen what sort of merit the claims of Katy Perry’s lawyers had. That said, I made a Left Shark cookie cutter that I 3D print on my 3D printer. It’s up on my Etsy page. I’ve received NO cease and desist letter. Wonder if they care about cookie cutter representations? Or, if Katy Perry and her lawyers are just Pro-Cookie. https://www.etsy.com/listing/221431824/3d-printed-left-shark-cookie-cutter
I still have no clue why anyone cares about the shark or Katy Perry..
Thanks for your post. Great contribution. Please post again soon.
Almost as good as your post
Almost as good as your contribution to nuclear power.
It happened ONE TIME, and no one can seem to let it go!
Money fighting money over money….. I’m hungry
“Katy Perry and her legal ROAR full of DREAMy TEENAGE FIREWORK fluff”
One quick comment – as a lawyer who represents various websites, I have seen a LOT of DMCA notices, and plenty of nastygrams. Based on that experience, it generally takes me a matter of seconds to review a DMCA notice (or a letter attempting to invoke the DMCA) and decide if the lawyer is an honest and serious person, or if they are full of crap.
In this case, the fact that the letter mentions punitive damages is an immediate red flag. ANY lawyer that knows anything about copyright law knows that punitive damages are not available in copyright cases. Similarly, the reference to statutory damages is wholly inappropriate because it’s virtually certain the work (whatever it may be) has not been registered with the copyright office. In that case, statutory damages are also unavailable.
Sadly, this law firm — Greenberg Traurig — is notorious for this sort of thing. I’ve never encountered a firm with lower ethical standards, but hey, in this case they got the results their client paid them for, so good for them.
Thank-you for the insight!
You’re welcome, but I wasn’t kidding — if you ever see anything from Greenberg Traurig, you should always take it with a grain of salt. In my experience, that firm will say or do virtually anything if they are paid enough, whether the law is on their side or not. Just sayin’….
WOW, just did a little research (wiki), it is insane how many times attorneys for this firm have been federally charged with some kind of fraud or another
C&Ds are more like a bookmark than an actual complaint.
The law is an adversarial process. Information only goes into the findings of fact if you can push it in there over the arguments of the other side. If you fail to mention something that could help you win, that’s your fault.
In this case, Katy Perry’s lawyers saw something with a clear association to her show. Nobody disputes the connection. There may or may not be legal grounds to say that Katy Perry has enforcable rights over The Shark on the Left, but if they don’t act like an argument does exist now, it will hurt their chance to win a case later (assuming they come up with something worth taking to court).
The correct response is to say, “thank you for contacting us, please confer with our lawyer concerning the issues relevant to your claim” then go get a smoothie or something. A C&D doesn’t have any judiciary power behind it, it’s just how lawyers say, “hey, we need to talk.”
I would, uh, also like to express my fondness for, uh, referring to lawyers as sharks.
Anyone remember that episode of Happy Days when Fonzie jumped the lawyer?
I heard that NBC is suing Katy Perry for using the image of “land shark” from its 1970s SNL skits.
Well, Left Shark now has a Facebook page and his name is now #FoamChompsky
As a maker of professional mermaid costumes, I can tell you that I have no claim of copyright on any of my tails. However, I do own the character of Pearlie Mae, Empress of the Sea, and if her likeness is reproduced for profit, look out! I’ve got lawyers with lasers on their heads!
your article had me going oh, oh, oh, as I scanned across the paaaage