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And Finally Artist News Beef Of The Week Legal
CMU Beef Of The Week #243: Katy Perry v (a) Left Shark (statue)
By Andy Malt | Published on Friday 13 February 2015
So, you were thinking this week’s Beef Of The Week would be Kanye v Beck, weren’t you? You probably told all your friends and tweeted it on Facebook. Well fuck you, dear readers. Fuck all of you. You can’t tell me what to do, just because something’s basically the only thing anyone’s talked about all week. If you wanted to know about Kanye and Beck you should have read about it here, and here and here. And on every other web page on the internet.
Because while you’ve all been busy consuming blanket news coverage about something stupid that happened last Sunday that has kept people talking about an awards ceremony for way longer than it deserves, sitting there like dicks wondering what the resulting Beef Of The Week summary might look like, something much better has been going on: an exchange of legal letters quibbling over the minutiae of copyright law.
I know. You feel pretty silly now, don’t you? Had you known there were quibbling legal letters floating around, you wouldn’t have made such rash assumptions about my editorial judgement. Because if there’s one thing CMU loves more than Kanye West RIGHTLY telling someone to hand their newly received award over to Beyonce (sorry Beck, that album was nice, but OF THE YEAR? No), it’s an increasingly petty exchange of letters between lawyers.
This all traces back to Katy Perry’s Super Bowl half time performance earlier this month, where everyone lost their minds over a man dressed as a shark. Yeah, OK, it was the stupid thing that generated blanket news coverage and endless pointless debate the week before last, I know that. But since then it’s all gotten rather petty, which is much more fun.
In preparation for writing this, I actually watched said performance, having not done so before. In fact, I don’t think I’d ever previously watched a Super Bowl half time performance in my life. You might say that puts me out of step with pop culture, and thus slightly out of step with my job. But fucking hell, people, one of us has to maintain some fucking perspective. Seriously, for all the shouting you lot did about that Left Shark guy, you’d have thought he might have done something of note.
I had to watch all the way through to the end of the performance just in case it was in the final few seconds of the show that he appeared on stage doing some that warranted a mention. But no. Nothing. Not one thing.
This is why we can’t have nice things. Because you all watch a really visually impressive live performance and the one thing you take away from it is the least interesting thing about it. I’m not even 100% sure what Left Shark did, other than appear on stage dressed as a shark. But you all think it’s the most wonderful thing to ever happen. I hate you. And you deserve it.
But thankfully something good did come out of all of this: the previously mentioned (at least twice, please keep up) exchange of legal letters. Because a guy called Fernando Sosa, who generally creates 3D printed sculptures of political figures, decided to make one of Left Shark and put it for sale on 3D print-selling Shapeways for any of you fools with a few bob spare to buy.
A move that, in itself, deserves no more than 8% of a mention. But then Katy Perry’s eagle-eyed lawyers spotted the 3D print design and immediately issued a cease-and-desist to the website through which the statue was being sold. Shapeways duly complied, taking down the page on its site selling the 3D shark and cancelling all orders. Perry’s lawyers probably thought this act would pass by unnoticed. But lots of people noticed. For various reasons not limited to the inexplicable interest in Left Shark.
In response, Sosa posted the design for the statue on Thingiverse, and various other 3D printing sites, giving anyone with access to a 3D printer the opportunity to download it and print their own. And he also started selling a new character on Shapeways called Drunk Shark.
Writing on his blog, Sosa said: “I didn’t make this 2.7 inches 3D printed figurine of a comical sea creature wanting to get into a legal battle. If anything I expected more controversy regarding my previous works, which included homophobic world leaders and local politicians. I certainly didn’t expect this reaction from a comical dancing shark”.
Meanwhile, amongst the many people debating on what grounds – intellectual property law-wise – Team Perry could issue a cease-and-desist against Sosa’s shark was NYU law professor Christopher Sprigman, who tweeted that Perry certainly had no claim to any copyright in Left Shark.
He sounds like the kind of guy you’d want on your side in a battle like this. Luckily for Sosa, Sprigman subsequently agreed to act as his legal rep. And even more lucky for us, Sprigman is adept in the art of the humorous legal letter.
“Mr Sosa is not especially eager to be fighting over copyright, but the legal merits of your claim seem very weak”, he wrote. “We also wonder what Katy Perry could possibly stand to gain from declaring war on an internet meme, but that’s her business”.
He pointed out that costumes (of sharks or otherwise) have no copyright protection under US law, and then pondered as to why Perry felt that the (non-existent) copyright in the costume would automatically belong to her anyway, given she presumably didn’t even design the outfit. He also included a quote from an interview the singer gave to Elle magazine, in which she bemoaned how much control she’d had to give up while putting together the Super Bowl show, specifically mentioning the “many committees I have to go through for my costumes”.
“Just drop this thing”, he finished. “My client just wants to get back to his business, and he (and I’d wager pretty much everyone else) would be grateful if you’d just back off. Going ahead with these very dubious copyright claims will not benefit Katy Perry”.
Yeah, sure, but they could be good business for Katy Perry’s lawyers, who I’m sure know when they’re onto a good thing. And so, on Tuesday this week, they responded with a new letter, keeping the fire burning.
Katy Perry owns the copyright, they said, because her company owns the copyright. Duh. And her team created “multiple shark drawings” in the process of realising the now iconic shark costume. “All of these drawings are copyrightable”, wrote Perry’s lead legal dude Steve Plinio. “As are multiple elements of the drawings incorporated into the final shark costumes themselves”.
He also claimed that Sosa’s selling of his statue amounted to unfair competition, adding that “it is clear that any commercial value that your client’s sculptures have derives solely from the public’s association of them with Ms Perry”. However, he concluded, Perry is “not interested in a dispute” and would be happy to sell Sosa a licence.
“Whoo! Plinio’s got him there. He certainly showed Sprigman who’s boss, and no mistake”. Yes, I know that’s what you’re thinking, but that’s why you’re not a lawyer. As we’ve already established, you’re someone who claps at dancing sharks. CJ Sprigman claps at nothing. He just sees holes in legal arguments and writes letters about them.
As such, he got right back on the typewriter (computers do not impress him either), and bashed out a detailed response. “The drawings are irrelevant”, he spat. “Sketches of Left Shark may be copyrightable, but that doesn’t make the Left Shark costume copyrightable”.
Perry would have a claim if Sosa had included the drawings made by the singer’s people in his sculpture design, Sprigman agreed. But as Sosa had never seen those drawings (or, indeed, known they existed), that would be difficult to achieve. Instead, he’d just had to knock something up based on the costume itself, which we’ve already established has no copyright protection.
As for those other “elements” that Plinio claimed made the design Perry’s and Perry’s alone, Springman asked what those might be. “I’m obliged to admit that, unlike any shark I’ve seen, the Left Shark costume has legs”, he wrote. “But that doesn’t make the Left Shark costume copyrightable. The Left Shark costume has legs because the person inside it has legs”.
He added that the unfair competition claim was “meritless” because “there is nothing unfair about copying works that are not copyrighted”. And furthermore, the insistence that the commercial value of the shark is intrinsically linked to Perry “misunderstands the source of whatever (probably scant) commercial value the Left Shark may possess”.
I think there might have been a derogatory comment about Sosa’s business decisions in those brackets there, but there’s no time to think about that, because he quickly went on: “No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the internet told us so. The internet decided that Left Shark’s flubbed dance moves were hilarious. It gave Left Shark his name, and then it made him into a meme. Left Shark isn’t really about Katy Perry. Unless you’re telling me she planned this whole thing”.
Whether or not anyone’s making that claim is unclear, because as yet there has been no response. But there has been an interesting aside, in that during this whole process Perry applied for various trademarks on Left Shark. And one application (albeit one that was abandoned this week) was made on the appearance of the shark.
In order to illustrate what Left Shark looks like, Perry’s team submitted, not a screengrab of the Super Bowl performance, but a photograph of Sosa’s statue, taken from the Shapeways listing that her lawyers had forced offline.
And that, ladies and gentlemen, I think you’ll all agree, was a lot more fun that examining Kanye West’s claim that everyone at the Grammys – Taylor Swift included – was hoping he’d actually barge Beck out of the way and proclaim his love of all things Beyonce on stage. OK, some of you may beg to differ, but let’s not forget that you’re the same people who got so bloody interested in a stupid dancing shark just two weeks ago. Which means I win. And I didn’t even need the legal counsel of one CJ Sprigman.
