“Left Shark” became an Internet phenomenon after Katy Perry’s Super Bowl half-time show earlier this month. In fact, Perry now is seeking to assert a copyright claim in the character (an out-of-sync back-up dancer), according to TechDirt. After the show, Fernando Sosa sought to sell 3D printed versions of Left Shark online. Shortly thereafter, Perry’s lawyers at Greenberg Taurig sent a cease and desist letter to Sosa. Rather than removing the product, as many C&D recipients have done, Sosa enlisted the help of NYU Law professor Chris Sprigman. Sprigman replied to the letter, stating that Perry held no copyright in Left Shark because the costume was not a copyrightable object. Continuing the confrontational dialogue, Perry’s attorneys asserted that the Left Shark costume was indeed copyrightable because it was based off of shark drawings (design sketches are copyrightable), and there were several conceptually distinct aspects of the costume (portions of the costume that are creative rather than functional in nature, as functional elements cannot be copyrighted). Yet, Sprigman claimed that while the drawings may be copyrightable, that does not give rise to a copyright in the costume itself. He also argued that there was no conceptual separability.
In the midst of this copyright battle, Perry’s lawyers filed a trademark application for “Left Shark” that used Sosa’s image. The application was withdrawn several days later, but this may implicate Perry as an infringer of Sosa’s copyright in the image. Finally, Bonobos, the pant company, now has decided to get in on the action. After tweeting a proposal for a crowdfunded Left Shark costume during the Super Bowl, the Company has sent a mocking letter to Perry asking for “permission” to use Left Shark. Ultimately, as music artists have less control over profits from the sale of their music, more and more artists have begun pushing the boundaries of copyright and trademark law to ensure adequate compensation. Therefore, the Left Shark battle may continue for weeks to come.