Tags
3D Printing, Copyright, Copyright Infringement, costume, intellectual property, Katy Perry, Left Shark, Super Bowl
Super Bowl XLIX (or Super Bowl 49 for those not versed in Roman numerals) will long be memorable, not only because of the epic back-and-forth battle between the Seattle Seahawks and New England Patriots that ended in one of the most stunning plays (and controversial play-calls) in Super Bowl history, but also for the rise of the ‘Left Shark’ phenomenon. In case you missed it, this year’s Super Bowl Halftime Show featured pop music diva Katy Perry who, for an extended sequence, danced onstage between two dancers in shark costumes, one of whom (appearing on the left from the viewer’s perspective) appeared to have forgotten the choreography and had decided to wing it (or fin it. . .that’s a shark pun). Naturally, the internet exploded as a result. Seriously, Twitter and the internet were soon filled with memes and other jokes regarding the ‘Left Shark.’ However, the ‘Left Shark’ fad took a turn into the murky waters of Copyrights and 3D Printing when Attorneys representing Katy Perry issued a cease & desist letter for a 3D Printable sculpture design of Left Shark.
![Honestly, I don't really get the hoopla. But than again, all background dancers look to me like they are just making it up. Apparently, my ability to discern choreography from free-style is much lower than the average Super Bowl viewer.](https://trademarkcopyrightdangerzone.wordpress.com/wp-content/uploads/2015/02/left-shark.gif?w=495&h=257)
Honestly, I don’t really get the hoopla. But than again, all background dancers look to me like they are just making it up. Apparently, my ability to discern choreography from free-style is much lower than the average Super Bowl viewer.
The trouble stems from a set of designs for the Left Shark sculpture that were posted to the Shapeways’ site by Fernando Sosa, a 3D Printing artist who undoubtedly saw an opportunity to profit from the whole phenomenon. Shapeways is a 3D printing services and commerce company that allows users to submit 3D printable files from which Shapeways will either print the objects on behalf of the user or offer the objects for sale on behalf of the user to consumers in its online marketplace. However, apparently these designs somehow came to the attention of Katy Perry’s Legal Team, who themselves were likely looking to secure intellectual property protection (and thus the exclusive rights to profit from the Left Shark trend). Both Shapeways and Sosa received cease & desist letters that claimed that the Left Shark sculptures infringed Perry’s copyright in the Left Shark image and costumes and demanded the designs be removed from the website.
While Shapeways did comply with the take-down request, Sosa has retained (potentially on a pro-bono basis) New York University School of Law Professor Christopher Sprigman as his legal representative. Sprigman has taken up a adamant defense of Sosa and his designs against the copyright infringement claims levied against him via a series of back-and-forth letters with Katy Perry’s Attorneys (no lawsuits have been filed. . .yet).
The arguments of both sides can be currently summarized as follows:
–Katy Perry’s Attorneys: Katy Perry owns a valid copyright in the shark costume since her design team created multiple drawings in creating the costume, which themselves are copyright-able, along with the separate elements of the drawings that were depicted in the costume itself. Therefore, the 3D print design files and the sculptures created from them are infringing, since they depict the shark costume which incorporates elements from the copyrighted drawings.
–Sprigman: Sosa’s 3D print files can not be infringing since Katy Perry does not have any copyright ownership in the shark costume that the files depict. Costumes are not protected by copyright since they are ‘useful articles.’ While the design drawings used to create the shark costume are copyright-able, they are irrelevant to this matter since Sosa has never seen those drawings and he based his designs off the costume worn during the Super Bowl half-time show. Additionally, there are no separable elements in the costume that can be argued as being copyrighted on their own merit away from the shark costume itself. Therefore, Sosa’s designs and sculpture do not infringe any copyrights of Katy Perry’s.
It’s unlikely this will be resolved soon. Perry’s lawyers have repeated their demands that Sosa’s either take down the files or negotiate a license for use of the Left Shark image, while Sosa apparently felt confident enough in Sprigman’s insistence of a non-claim that he re-posted his 3D print designs on Shapeways, now with a new ‘drunk Left Shark’ figurine (Sosa has insisted via his blog, where he has been bluntly documenting his feelings and struggles on subject, that the designs will stay up “until they prove copyright or send [him] to court [sic].”).
In my personal opinion, I concur with Sprigman’s analysis that Perry’s law firm does not have much of an infringement case. The Copyright Office has several times issued policy statements that declared costumes to be classified as ‘useful articles’ and thus not copyright protected in most cases. A “useful article” is an article having an intrinsic useful function that is not merely to portray the appearance of the article or to convey information. Clothing articles, such as lady’s dresses, usually are considered to be useful articles. In the case of the Left Shark costume, the main purpose of the costume is to be worn by the dancer, not to convey information or serve as static art piece. However, elements of a costume can be copyrighted, if it is shown that they physically or conceptually are separate from the functional, useful aspect of the article. For example, a distinctive pattern on a dress might be considered copyright-able since the pattern itself serves a artistic purpose and is non-essential to the dress’s main task of being a piece of clothing that can be worn. With the Left Shark costume, I’m also in agreement with Sprigman that there appear to be no elements of the costume that can be separated from the essential functional element of being a shark costume (for example, you couldn’t argue that the fins are separable since they are essential to the function of having a shark costume, since sharks do have fins). I also find Perry’s Attorneys claim that Sosa’s files infringe the shark costume drawings that the team produced during the design phase unpersuasive since an essential element of any copyright infringement claim is that the claimant needs to show that the defendant had access to the copyrighted materials. Unless Sosa magically has some inside connections in Katy Perry’s camp that ferreted him those drawings before he created his Left Shark sculpture, there is no way Katy Perry can prove that he had the requisite access for an infringement claim (there are several cases where an individual created a work remarkably similar to an earlier copyrighted work but the courts found no infringement because the accused individual had no access to the earlier work).
However, what makes this case really interesting is how it highlights many of the ambiguities at the intersection between copyright and 3D printing. As many commentators have noted, 3D Printing is an area of controversy among copyright practitioners, and one that will likely continue to grow as 3D printing technology continues to develop, become more affordable and accessible, and is adopted more broadly in business contexts, which increases the likelihood that there will be more litigation with 3D printing at the crux. First, there is concern that 3D printing will enable easier and more widespread infringement of not only copyrights, but also patents and trademarks. It’s not hard to imagine a consumer opting to download designs off the internet and use his 3D printer to spit out a copyright or patent protected item, rather than purchase it from a legitimate source. Similarly, it’s not hard to see mass willful infringers and IP pirates using 3D printers to create a flood of goods (complete with trademarks) that look and feel virtually identical to the genuine articles. Really, this is no different from the concerns and arguments that were raised when VCRs and CD Burners became available to the market, but 3D printing technology is perhaps more threatening in this regard because of how broadly applicable and pervasive it potentially can be.
Secondly, there’s controversy over whether the design files used by 3D printers to create objects are themselves protected by copyright. Copyright law does specifically protect designs, diagrams, technical plans and models, but there are limitations. If a technical plan is the only practical way to virtually represent a physical object, than it is not copyright protected since doing so would prevent others from making any virtual version of that object. As can be imagined, determining that boundary can be pretty difficult when it comes to 3D print design files.
Additionally, there are questions raised over whether a design file that allows a user to 3D print a copyrighted object is itself infringing. Re-phrasing the question, if Sosa had not posted his design files for his Left Shark sculpture on Shapeways, who would print the sculpture for consumers for a price, but instead just posted them to his personal blog, could Katy Perry’s legal team come after him for infringement, assuming in this case that Katy Perry did own a valid copyright for Left Shark? Arguably, Sosa’s design files are just his written technical description of Left Shark. Those design files would than be his own, unique copyrighted work, and thus could not be accused of infringing Katy Perry’s copyright (if it exists). Perry’s attorneys would argue that the design files do infringe since it would allow others to 3D print an article that would be infringing, but I think the issue is more grey than that. For instance, if I publish a book that gives detailed descriptions and instructions on how users can paint and re-create on their own the famous paintings of Salvador Dali, am I guilty of copyright infringement, even if the book does conceivably allow anyone who uses the book the ability to create their own famous Dali painting from scratch? Perhaps and perhaps not. In reverse, it maybe argued that the design files are a form of contributory infringement since they can only be used substantially for copyright infringement. It also could potentially argued that the files are derivative works of the original valid copyright. These and others are all tough questions with no clear answers.
Therefore, regardless on what the outcome is in the tug-of-war between Katy Perry’s and Sosa over the right to produce Left Shark memorabilia, the questions that 3D printing raises under Copyright law will undoubtedly continue to be debated in the coming years.
P.S. In perhaps a vote of no-confidence in their Left Shark copyright claims, Katy Perry’s attorneys also submitted applications for a trademark in the Left Shark image, no doubt as part of another strategy to gain the rights to exclusively profit from the sensation. However, in a pretty sloppy move, Perry’s legal team appears to have used Sosa’s own photo of his Left Shark sculpture that he used on Shapeways in their application. Although the trademark filing was pretty quickly withdrawn, this is a hilarious, if not outright bizarre, development since Sosa arguably could pursue his own copyright infringement claim against Perry’s attorneys for their unauthorized use of his picture. And that claim would probably be a lot less dubious than the one being levied against him.
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