Left Shark Isn’t As Scary As the Lawyers Protecting It

Bradley Gross, Esq. Managing Partner
Bradley Gross, Esq. Managing Partner

It’s been reported that over a hundred million people watched Katy Perry’s Super Bowl halftime show. If you’re one of those people, then you likely saw the dancing sharks that accompanied her on stage.

I’ve heard lots of opinions about those sharks (“They were ridiculous”, “They were funny”, “They made sense because it was a ‘beach’ theme”, etc.) But one opinion I just read left me speechless.

The opinion was that of an attorney who, in the context of a “cease and desist” letter, claimed that Katy Perry owned the image of the dancing sharks and, specifically, the left dancing shark. Yes, folks, the diabolical Left Shark is purportedly owned by Katy Perry. [Insert evil laugh here]. The letter further stated that an artist who created and sold a 3-D image of Left Shark violated Ms. Perry’s intellectual property rights. Naturally, the artist was threatened with all kinds of sundry penalties.

Seriously, this really happened.

It’s unclear whether the artist, Fernando Sosa, will be intimidated into ceasing his sales of his Left Shark sculptures–but I hope he’s not. I hope that artists and artisans band together, support Mr. Sosa, and take this matter to court–because he would win. Here’s why:

First, in order to enforce a copyright in court, you need to be the owner of a registered copyright in the work being infringed. Until the Copyright Office issues you a little “gold star” stating that you own the work being infringed, you can’t commence copyright litigation. It’s unclear whether Ms. Perry fulfilled this initial filing requirement–the Copyright Office’s online database doesn’t readily demonstrate that Left Shark was copyrighted. (I have to believe that prior to sending a cease and desist letter to a legally “unarmed” artisan, Ms. Perry’s attorneys verified the filing and copyright registration of Left Shark.)

Of course, if Left Shark wasn’t registered individually (because, after all, who would have thought to register Left Shark??), then the argument is that the entire show was copyrighted and since Left Shark was a part of that show, Left Shark is protected under the entire show’s copyright registration. But if that’s the case, then Mr. Sosa has a pretty good “de minimis use” defense …more on that later.

Assuming Left Shark was registered with the Copyright Office, there’s a serious (indeed, legally fatal) problem with Ms. Perry’s legal position. To be protected under the Copyright Act, copyrighted material must be original. You simply can’t take something generic, slap a © symbol on it and then claim it’s yours. It doesn’t work that way.

Now, Ms. Perry’s attorneys would surely argue that Left Shark is sufficiently original to warrant copyright protection. And they would be wrong. If you disagree, take five minutes and search online for “Shark Costume.” Go ahead. I’ll wait.

Left Shark-type costumes are ubiquitous. Perhaps the eyes vary slightly, or the shape of the fins are slightly different, or the feet may be different (yes–virtually all shark costumes seem to have feet), but the expressive elements are virtually the same. (Is Left Shark that much different than the infamous shark from the classic SNL skit, “Land Shark”?) In terms of copyright law, “the same” equals “unprotectable.” Here, Ms. Perry’s Left Shark, as well as Mr. Sosa’s Left Shark, are highly similar to lots of shark costumes that are readily available to consumers worldwide. For that reason, copyright law doesn’t favor Ms. Perry’s position.

Moreover, Mr. Sosa likely may have a strong “fair use” argument as well. (“Fair use” is often misunderstood. It is a legal doctrine that says that you can use someone else’s copyrighted work for certain specific purposes, such as satire, commentary. or criticism.) Do you think that Mr. Sosa’s sculpture is a parody of the peculiar dancing shark that accompanied Ms. Perry on stage? Of course it’s a parody. That’s why Mr. Sosa called his sculpture”Left Shark”–it’s a joke about the fact that the guy dressed in the shark costume dancing stage right was, well, a bit awkward.

In any event, Left Shark was a minor player in a huge halftime show production. No one could seriously argue that Mr. Sosa diminished the commercial value of the halftime show by paying artistic homage to a guy dancing in a shark costume. Ms. Perry’s performance was not defined by Left Shark. Mr. Sosa has not attempted to profit from the indisputable good will of the NFL or Ms. Perry herself. He simply made a humorous 3-D model of a guy in a shark costume and called it “Left Shark.” If he did copy Ms. Perry’s intellectual property, then his activity was what lawyers call, “de minimis”. (If you paid a lawyer to define “de minimis”, she would say, “It was a tiny, non-defining part of a much larger copyrighted work, so we will forgive any infringement.”)

Bottom line: the sculpture is funny. Yes, I’m sure Ms. Perry’s attorneys would say something intellectually poetic like, “Theft of intellectual property is never funny.” And, to be fair, stealing other people’s stuff isn’t funny. But this wasn’t theft–this was a dancing shark. Let’s lighten up, follow the law, and stop scaring artists with baseless accusations of copyright infringement.