Left Shark Still Not “All Right”: The Legal Battle Continues With New Trademark Claims

Screen Shot 2015-03-02 at 6.44.25 AMBy Julie Liu

In the most entertaining legal battle to develop out of Super Bowl XLIX, Katy Perry has famously attempted to copyright Left Shark, the much-celebrated Internet phenomenon of the month. In a more recent development, Perry has made further moves to bolster her intellectual property rights—this time with a trademark claim.

The origins of Left Shark are by now a familiar subject: two “sharks” served as backup dancers in Perry’s beach-themed halftime performance; one of them unexpectedly stole the show by bumbling his way through the choreography. The less-than-perfect performance did not escape the internet’s attention and collective amusement, and so Left Shark was born.

Before long, Fernando Sosa (of figurine company Shapeways) began recreating the shark for sale in miniature, and Perry’s lawyers responded with a cease-and-desist letter, claiming that Sosa’s product “infringes [Perry’s] exclusive rights in numerous ways.” Represented by NYU law professor Chris Sprigman, Sosa struck back by rejecting Perry’s ownership of copyright. Sprigman cited Perry’s own quotes, which indicated that she was not the “boss” of her halftime show, including, presumably, the production decisions leading to the creation of Left Shark.

Scholars and practitioners generally agree that Perry’s copyright claims are lacking. For one, “useful articles” such as clothing are not copyrightable unless the article’s aesthetic elements are physically or conceptually separable from its functional value. Under Perry’s claims, it is unclear whether Left Shark possesses independent aesthetic value. While the issue of separability has not been resolved in application to costumes, the outcome is uncertain at best. Some IP lawyers argue that Left Shark may be copyrighted as a character; however, a question remains as to who owns the design and concept.

As a classic case of a small business holding its own against corporate lawyers, this dispute serves as an example of when big names should reconsider whether the publicity is worth the fight. Perry’s lawyers have notably continued to persevere. As of late February, they have changed tactics and filed for trademarks on “left shark,” “right shark,” “drunk shark,” and “basking shark.” This time, IP lawyer observers point to the issue of “failure to function” as the main obstacle for Perry’s lawyers, as the trademarks will likely fail to indicate a source of origin. Either way, having filed the applications, Perry may have a degree of power to wield against businesses and artists like Sosa, at least for now.

In the contexts of both copyright and trademark law, the dispute raises a pertinent question of ownership, which in turn requires us to consider: what is the essence of Left Shark—costume, character, or something else? In relation to the copyright dispute, Left Shark is an internet meme, the joint creation of millions of social media users. These users did the bulk of the work by reacting to the bungled dancing and, through repeated sharing and commentating, making Left Shark a relatable symbol of human (and shark) imperfection. As such, ownership is not simply a matter of determining who designed the costume or choreographed the dance. If and when a lawsuit is filed, it will be interesting to see how courts account for the role of the internet as powerful force in artistic creation—an issue that promises to come up frequently in the future.

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